AG2003/2740, Transcript of Proceedings [2003] AIRCTrans 1747 (13 May 2003)

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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER RICHARDS

AG2003/2740

APPLICATION FOR CERTIFICATION OF AGREEMENT

Application under section 170LK of the Act
by Brett's Wharf Seafood Pty Limited re the
Brett's Wharf Seafood Certified Agreement
2003

BRISBANE

10.07 AM, THURSDAY, 17 APRIL 2003

PN1

THE COMMISSIONER: Good morning everyone. Take a seat. I have before me this morning an application for purposes of certification of an agreement made pursuant to a section 170LK of the Act to be prospectively known as Brett's Wharf Seafood Certified Agreement 2003. Perhaps I could take some appearances.

PN2

MR K.J. LAW: Commissioner, if the Commission pleases, my name is Law, appearing for the Restaurant and Caterers' Employees' Association of Queensland Industrial Organisation of Employers. Appearing with me is MS DONNA ROWAN for the general manager, Mr David Alexander Moore. Further on my right across the table is Mr Gavin Wade Betts, Mr Jason Alexander Ewart and Mr Adam Michael Catton. These fellows are employee representatives of Brett's Wharf Seafood Pty Limited.

PN3

THE COMMISSIONER: Thanks, Mr Law. Mr Law, perhaps you might want to lead off and tell me something of the background of the agreement and the reasons why I should be satisfied it's conformed with the Act.

PN4

MR LAW: Thank you, Commissioner. This is an application for an 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. Brett's Wharf Seafood Pty Limited trading as Brett's Seafood Restaurant employs full-time, part-time and casual employees as well as apprentices and trainees. This agreement was made directly with the employer and the employees of this commercial business located at 449 Kingsford-Smith Drive, Hamilton, 4007 in the state of Queensland.

PN5

This commercial business is a restaurant and provides quality food and beverages up to the public. This agreement applies to the business as a whole as per 170LB of the Workplace Relations Act. Already filed with this Commission are the affidavits of Mr David Alexander Moore, General Manager, Mr Gavin Wade Betts, Mr Jason Alexander Ewart and Mr Adam Michael Catton. Mr Betts, Mr Ewart and Mr Catton are present to answer any questions that the Commission might have. I've tendered the no-disadvantage test. I have also supplied to this Commission a comparison table in the award and the proposed agreement. Brett's Wharf Seafood Pty Limited believes there is no disadvantage to any employee as a result of this agreement, hence, believing this proposed certified agreement meets the principles of the no-disadvantage test 170LT.

PN6

Other important elements of this agreement for the certification of Brett's Wharf Seafood Restaurant Certified Agreement 2003 are: this agreement will be a three year agreement as noted in clause 4 of the agreement before you at this moment. This agreement contains a grievance and dispute settling procedure at clauses 11.3 and 11.4. This agreement contains an anti-discrimination and sexual harassment and also a workplace bullying clause at clause 15. The employer's general manager, Mr David Moore, and employee representative, Mr Gavin Betts, Mr Jason Ewart and Mr Michael Catton have signed this agreement.

PN7

Other requirements of the Workplace Relations Act 1996: one employee chose to contact the relevant union of employees to assist them in this matter, that is, he contacted the Australian Liquor, Hospitality and Miscellaneous Workers' Union. That employee has since resigned before the vote was taken and the union has not contacted the employer since that time. Commissioner, I've some correspondence in relation to that process to go through if you so choose, but as the union's not - - -

PN8

THE COMMISSIONER: I would be grateful if you would, Mr Law.

PN9

MR LAW: Would you like a copy of this correspondence, Commissioner?

PN10

THE COMMISSIONER: If you have a copy there, Mr Law, that would be helpful.

PN11

MR LAW: Do you want to mark that as an exhibit or have you - - -

PN12

THE COMMISSIONER: Well, I might mark it M1 just for the purposes of clarity.

EXHIBIT #M1 CORRESPONDENCE

PN13

MR LAW: Commissioner, on 29 October the Australian Liquor, Hospitality Miscellaneous Worker's Union secretary, Ron Monahan, wrote to Brett's Wharf. I might just read that short letter out.

PN14

Further to your attached notice this was distributed to staff. Please be advised that the LHMU has requested that Mr Chris Roman and LHMU organiser, Mr Michael Debrenni, represent the members -

PN15

which they've only got one member -

PN16

on site in negotiation of the agreement to replace the abovementioned expiring document. Please contact Michael Debrenni on the time table that's appropriate.

PN17

THE COMMISSIONER: Sorry, Mr Law, whereabouts are we in this?

PN18

MR LAW: On the letter dated 29 October. It's the last page, Commissioner.

PN19

THE COMMISSIONER: Oh, the last page. Where is your attached notice? It says - - -

PN20

MR LAW: That was a notice that was - well, I've got to say I didn't attach that to it - that was a notice that was provided to staff in relation to the meeting being called to initially discuss the certified agreement.

PN21

THE COMMISSIONER: Right. Okay. You don't have a copy of that available by chance, would you?

PN22

MR LAW: I'm not sure if I have or not. No, I'm sorry, Commissioner, I don't have a copy of that notice, but that can be provided to this Commission if you so request.

PN23

THE COMMISSIONER: We will come to it shortly anyway and if you could - just some aspects of it, but sorry, if you can just go on.

PN24

MR LAW: Thank you. The next letter I'd like to turn to is a letter from Restaurant and Catering Queensland. I wrote this letter to Mr Ron Monahan, dated, 1 November:

PN25

I refer to your letter, 29 October. It is the intention of Brett's Wharf Seafood Pty Limited to negotiate ...(reads)... organisation represent the person in meeting and conferring with the employer about the agreement.

PN26

Going on:

PN27

Section 170LK(5), if the organisation is so requested to represent such a person the employer must give the ...(reads)... employer's replacement certified agreement you will be provided with a copy of the proposed -

PN28

that was written in 2002 which is now the 2003 agreement -

PN29

for your comment and given an opportunity to address any comments from Brett's Wharf Seafood ...(reads)... requirements of the employer's business. If you have any questions you can contact me.

PN30

On 4 December 2002 I sent another letter to the secretary of the Liquor Trades Union:

PN31

Further to my letter of 1 November please find attached a copy of the proposed Brett's Wharf Certified ...(reads)... expect employees who have any suggestions or alterations. Again, you can contact me.

PN32

On 13 December I sent a facsimile again to the Liquor Trade Union:

PN33

Ron, further to my letter of 4 December and conversations with Michael Debrenni, today this is to ...(reads)... meeting with Chris Roman, the union rep, and a subsequent meeting with management.

PN34

On 10 February another letter was sent by myself to the union once more:

PN35

I wish to refer to my letter of 4 December and facsimile of 13 December in relation to the above ...(reads)... 449 Kingsford-Smith Drive, Hamilton. Should no comments be received by that time -

PN36

and I will refer to that in a moment -

PN37

it will be assumed that the agreement will be placed before the staff of voting upon. If approved by the ...(reads)... at Brett's Wharf Seafood is now not working with the restaurant and I understand he is now in London, England.

PN38

On 13 February I sent a letter to Michael referring in - Michael, in my letter - sorry, fax - I apologise:

PN39

Michael, in my letter of 10 February, copy attached, I did not include the date of that the employer wants comments by and that is 26 February.

PN40

Since that time we have not heard from the Liquor Trade Union at all in relation to this matter and so we've filed their application and as can be seen today the Liquor Trade Union aren't present today.

PN41

THE COMMISSIONER: Did the union ever take up the offer for a scheduled meeting?

PN42

MR LAW: No, they didn't.

PN43

THE COMMISSIONER: And that was prior to your letter informing them that their single member had departed.

PN44

MR LAW: That's right, yes.

PN45

THE COMMISSIONER: So there was no offer - there was no acquiescence to - there was no acceptance of a meeting even when the single member was there?

PN46

MR LAW: That's right.

PN47

THE COMMISSIONER: Yes. Okay.

PN48

MR LAW: I believe that the Liquor Trade Union has had every opportunity to be involved. Their sole member had since left and we've continued on with the process for the certification.

PN49

THE COMMISSIONER: Mr Law, can I just ask a question just on this issue to either Mr Catton or Mr Ewart or Mr Betts? Perhaps starting with Mr Betts. Mr Betts, were you aware at the commencement of the - or when the agreement became available to you that you did have a right to have a representative for purposes of the making of the agreement, be it a person or a friend, a mentor or a member - or a union? Were you aware of that?

PN50

MR BETTS: Yes, I did, Commissioner.

PN51

THE COMMISSIONER: You were aware. And in your view was that generally understood - that right generally understood by - - -

PN52

MR BETTS: Yes.

PN53

THE COMMISSIONER: Mr Ewart?

PN54

MR EWART: Yes, Commissioner.

PN55

THE COMMISSIONER: You confirm that's your view as well? There was a general understanding that - - -

PN56

MR EWART: Most certainly, yes.

PN57

THE COMMISSIONER: Mr Betts, you can sit down, if you like, otherwise this is going to look very odd by the time I've finished. Mr Ewart, you were generally aware - you're aware that there was generally an acceptance that all the employees understood at the very start of the negotiation of the agreement when the notice was provided that there was an intention to make the agreement that there was available to you a right to have a union or another representative?

PN58

MR EWART: Oh, very much so, yes.

PN59

THE COMMISSIONER: All right. Thank you. Mr Ewart, you can sit down. Mr Catton, is that your view as well?

PN60

MR CATTON: Yes, it is, Commissioner.

PN61

THE COMMISSIONER: You can confirm that you understood that was your right and generally the right available to everyone else in the work force?

PN62

MR CATTON: Yes.

PN63

THE COMMISSIONER: Thanks, Mr Catton. Mr Law, the reason why I'm just exhausting this a little bit is probably, I think, for reason you understand in the background, this is the precise terms of LK(4)?

PN64

MR LAW: I was just about to come to that, Commissioner. That's in my submissions.

PN65

THE COMMISSIONER: Yes, okay, I will let you come to it. Thanks.

PN66

MR LAW: Continuing with the other requirements of the Workplace Relations Act 1996 no employee was coerced in any way to agree to implement the certified agreement 170LT(9). No employee was unfairly omitted from the agreement. Prior to the making of the agreement the employees were notified of the employer's intention to develop a certified agreement for Brett's Wharf Seafood Restaurant. On 10 December 2002 the agreement was explained in full by myself. Each employee was provided a copy of the proposed certified agreement for their consideration for a full 14 day period.

PN67

Staff were advised that they could consult with the union, a friend, a family member, a solicitor, or similar professional, etcetera, should they so choose.

PN68

THE COMMISSIONER: Sorry, how were they advised?

PN69

MR LAW: I advised them verbally at the meeting on 10 December.

PN70

THE COMMISSIONER: Was that the employees understanding as well? If I could just confirm for transcript that everyone's nodding willingly at me. Yes, thank you. Sorry, Mr Law.

PN71

MR LAW: On 10 December 2002 the staff representatives, Mr Betts, Mr Ewart and Mr Catton were appointed by the staff with no involvement of the employer. Any inquiries from the proposed agreement were directed to the staff representatives. No questions were received from the staff. The agreement was approved by a valid majority of employees on 8 and 9 March 2003, that is, 55 out of 70 cast votes by way of a secret ballot. 46 voted in favour of the proposed agreement, 8 voted against and 1 was undecided. That exceeds 50 per cent plus one requirement. The final agreement is now before this Commission seeking certification. The proposed certified agreement is not inconsistent we believe with any provision of the Workplace Relations Act 1996.

PN72

THE COMMISSIONER: Mr Law, can I just stop you there and just make some observations just first of all before we leave the area of LK(4)? LK(4), section 170LK of the Act is expressed in mandatory terms and it uses the word "must" on each occasion as to the requirements for an application to come before the Commission and in respect of LK(4) the precise wording is that, under the heading, Content of Notice of Intention, is says, precisely, and I quote:

PN73

The notice must also state if -

PN74

and it goes on to state what the notice must say and one of the things the notice must say is that persons be given - any person's whose employment be subject to the agreement is a member of an organisation and that they have a right to have that organisation appear for them. So the precise terms of the Act is a mandatory requirement that the notice - the written notice - and a notice is a written instrument, not a verbal one, a written instrument - that the notice contain that character or that feature of it expressly so.

PN75

Now, that said, yes, that is I noticed on your statutory declaration that was an issue of some degree of non-conformity with the precise terms of the Act. Now, in my view on the abundance of evidence before me this morning; that is the evidence in documentary form of the involvement of the relevant union of the - and documentary form, the expression of interest by a former member of a union who was employed at Bretts Wharf to seek the involvement of the union; and, indeed, then the abundance of evidence given to me by way of the employees that they for all intents and purposes knew that any ambiguity or confusion whatsoever, that these were rights for representation in respect of a solicitor or an external consultant, a mentor or a member of a union.

PN76

That they were all aware of these rights before and at the time of the making of the agreement; and in light also of Mr Law's submissions as to the verbal information conveyed to all members - to all employees at the time of the notification of the commencement of the process making for the agreement. I'm convinced that these are rights embodied in - or that are given expression through the notice specified at LK(4) were unambiguously rights that were known to be made available. And, in fact, and in some senses, taken up by an employee at least at the site in question.

PN77

And, in fact, there was as we know extensive interaction, or at least in terms of correspondence with the union about the existence of the agreement and their role and ability to participate therein which they didn't choose to avail themselves of. Now, on the basis of that absolute abundance of evidence, in my view if I was to make a decision that LK(4) is mandatory that there wasn't a written instrument being a notice tha specifically said the things that the Act requires, that would be to - that would have the effect in my view of reducing the Commission's processes to mere proceduralism as opposed to ensuring that there are substantive and meaningful compliance with the requirements of the Act.

PN78

In view of that, I do not see it as in any way being the fact of the requirement of LK(4) having not been met in this strictly and peripheral procedural manner being in any way an obstacle to the certification of the agreement. As I said, on the weight of the abundance of evidence that's available to me this morning for purposes of the application, to do otherwise in my view would be to reduce Commission processes to mere proceduralism and would, I think, in that sense conflict with the objects of Part VIB, and indeed the principal objects of the Act, which is to facilitate the making of agreements. That said, Mr law, can you continue on?

PN79

MR LAW: Thank you. 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 Bretts Wharf Seafood Proprietary Limited trading as Bretts Wharf Seafood Restaurant more flexibility in its operations, budgeting, preservation of skills, lowering staff turnover, creating greater staff loyalty and career opportunities. It is the employees' and the employer's belief that this agreement conforms to the requirements of the Workplace Relations Act 1996; and it is commended to the Australian Industrial Relations Commission for certification.

PN80

Commissioner, on the point of 170LK(4) you mentioned, that was my mistake. I'll ensure that - we do a lot of these agreements in relation to our members - I'll ensure that that mistake doesn't happen in future.

PN81

THE COMMISSIONER: Good. Thanks, Mr Law. Can you tell - one of the elements of the agreement that struck me - for interest's sake and I presume it has some history to it and that is - and I don't have it highlighted I'm afraid - it's the clause that allows for an employee upon termination or on the anniversary of the agreement to seek an audit of their wages paid in the previous cycle; be it the period for which they're employed or the previous 12 months for the purpose of reconciliation against the award. I wouldn't mind - is that a pre-existing clause that has been carried over to the - - -

PN82

MR LAW: No, that one wasn't, Commissioner. That was one that my association has put together over the last few years since the first certified agreement for Bretts Wharf was put into place. We're trying to show that in our industry there is integrity in relation to these certified agreements. We're showing to the employees that there is good faith; so therefore we are giving the employee the opportunity to check their wages just in case they believe they are disadvantaged. We don't believe they will be in any way whatsoever, but we're giving them the opportunity in that first 12 months to question that process; and hence the reason for putting that review clause in.

PN83

THE COMMISSIONER: No, that's - it's a matter of some interest to me because I - these - issues come before me which can only sometimes be resolved by having clauses such as that operate in the future. And sometimes it's useful for an agreement to be certified on the basis of having that clause operate in the future, rather than not approve it at the front end of the process if you like. So, yes, the operation of it does interest me, and I'll be interested to see it come before me in other agreements as well. I notice the purpose of the no disadvantage test - you can just confirm it if you like - that the rates in the agreement apart from starting at a higher rate than the relevant Queensland award, I think some 12½ per cent, to support the cashing out provisions that are in the agreement, they are also to be updated by all of the Queensland Industrial Commission's - - -

PN84

MR LAW: That's correct, Commissioner.

PN85

THE COMMISSIONER: - - - safety net increases subsequently.

PN86

MR LAW: And a clause following that clause you just mentioned, there is a clause that talks about any increases that are passed down by the Queensland Industrial Relations Commission, and particularly only in relation to State wage cases. They're usually the only variations that apply to these awards and they will be flowed on automatically so the 12 per cent isn't run down in any way whatsoever, and the 12½ per cent will always be maintained.

PN87

THE COMMISSIONER: Yes. It's often the case that arises in these agreements that can start off with a nice spike but the spike runs down - gets pretty blunt over the course of the next series of safety net adjustments. Nonetheless, look, on the basis of the information that is before me, and on the basis of the comparative table, and the detailed documents that are before me and particularly also the detailed statutory declarations which have been of some assistance. And on the basis of the discussions that we've had in my statement in respect to the operation of LK(4) of the Act, in my view the agreement has met the requirements of the Act substantively.

PN88

And for that reason, I will certify the agreement as of today's date for the extent of the period of operation of the agreement which I think is - it's for three years and concluding on - is it, July perhaps? Mr Law, when does it conclude again?

PN89

MR LAW: Yes, it is, Commissioner. It's a three year agreement I think we've said; and it's being back-dated somewhat - - -

PN90

THE COMMISSIONER: Yes.

PN91

MR LAW: Did we say that? I just can't recall it now exactly. But, anyway, the intention was it would be three years from today - certification from today anyway.

PN92

THE COMMISSIONER: Yes. We just might check - I might check that unless you have expressly stated a date of - to be honest with you, it's just escaped me what the operational life was again.

PN93

MR LAW: It is a three year agreement.

PN94

THE COMMISSIONER: What clause are we on, Mr Law?

PN95

MR LAW: Just looking for it now, Commissioner. Clause 4:

PN96

This agreement is our contract with you. It is the basis of our employment at Bretts Wharf and defines ...(reads)... the Australian Industrial Relations Commission and will continue in force for a period of three years.

PN97

THE COMMISSIONER: Right. So on that basis then, section 170LK(10) of the Act is satisfied in the respect that the operational life of the agreement will be for three years from the date of certification which is today's date. On that basis then, unless there are any other matters anyone wishes to bring to my attention. Are there any other matters that any of the employees wish to bring to my attention that I haven't scrutinised or given them an opportunity to raise with me? None whatsoever? On that basis, we're adjourned. Thank you for your attendance today.

ADJOURNED INDEFINITELY [10.33am]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #M1 CORRESPONDENCE PN13