AG2003/3355, Transcript of Proceedings [2003] AIRCTrans 2019 (28 May 2003)

AUSCRIPT PTY LTD
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TRANSCRIPT OF PROCEEDINGS

O/N 10388
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER MANSFIELD

AG2003/3355

APPLICATION FOR CERTIFICATION OF
AGREEMENT

Application under section 170LJ of the Act
by Bartter Enterprises Pty Limited for
certification of the Bartter Enterprises
Geelong Live Bird Catching Collective
Agreement 2002

MELBOURNE

10.35 AM, TUESDAY, 13 MAY 2003

PN1

MS S. DAVIS: I appear for the Australian Industry Group on behalf of Bartter Enterprises Proprietary Limited. Commissioner, with me I have two representatives from both the company and employees. A MR W. JACKSON on behalf of the company and a MR P. HINCHCLIFF on behalf of employees.

PN2

THE COMMISSIONER: Thank you, Ms Davis. Ms Davis, as we are all aware, this is a 170LK proposed agreement between the employees of Bartter Enterprises and the employer. There has been a statutory declaration lodged in that regard. I can signal to you now that I want to have a very close look at this agreement. It is an agreement which contains a number of provisions which, I think, need some questions asked and answered. But, first of all, could you set out for me what just Bartter Enterprises does? These are chicken catchers or bird catchers I think we are talking about.

PN3

MS DAVIS: I might ask Mr Jackson if he can give a description.

PN4

THE COMMISSIONER: Yes.

PN5

MR JACKSON: Yes. We are a poultry processor fully integrated in that we start with the live stock and work our way right through the processing and then distribute directly to customers. So you might know us better as Steggles? All right?

PN6

THE COMMISSIONER: Okay.

PN7

MR JACKSON: So Bartter Enterprises is the trading name and Steggles is the brand name and so the job that Paul does is picking up the live birds from farms. They collect the live birds, put them into modules and they are delivered into the plant where we then process them. So Paul's job is to actually physically pick up the chickens, put them into modules so that we can then process them.

PN8

THE COMMISSIONER: Good. Thanks, Mr Jackson.

PN9

MR JACKSON: And we are based in Geelong, too.

PN10

THE COMMISSIONER: Thanks, Mr Jackson. So the actual task is you collect the birds - the individual employees that are referred to in this stat dec collect the birds, transport them to a processing plant and hand them over to other production workers?

PN11

MR JACKSON: Correct.

PN12

THE COMMISSIONER: Good. Okay, thanks.

PN13

MR JACKSON: And they are all direct employees, too, Mr Mansfield, they are - - -

PN14

THE COMMISSIONER: They are all direct employees?

PN15

MR JACKSON: Yes, that is right. Yes.

PN16

THE COMMISSIONER: Yes. Normally - do you have a significant turnover in your employee group or is it a pretty stable group?

PN17

MR JACKSON: It is a very stable group.

PN18

THE COMMISSIONER: Good. Okay. Well, that is a plus. That is sufficient for me at this stage. Perhaps, Ms Davis, you could first of all take us through the process of the statutory declaration.

PN19

MS DAVIS: Certainly, Commissioner.

PN20

THE COMMISSIONER: Including, if you wouldn't mind, an explanation of how the agreement was actually reached. There is a reference in the document to a consultative group - sat down with management. How did that happen? Who drafted the agreement? That sort of detail I would appreciate some information on. But, perhaps if you just go through the stat dec first, then we will go through the process and then we will come to the agreement itself.

PN21

MS DAVIS: Commissioner, as I understand it, a consultative committee was set up for the clear purpose of negotiating the agreement. There were three employee representatives which hold the positions of team leaders, as I understand it, and there were two management representatives. The terms of the agreement were negotiated and it has also been explained to me this morning that essentially the company's previous certified agreement was used as a starting point, if you like, a base and there were a number of additional provisions that were negotiated in this group of negotiations.

PN22

Those issues being negotiated were the pay increase of 3 per cent per annum over the life of the agreement, additional provisions relating to first aid, a facilitative provision to deal with smothered birds and also the issue of income protection was also dealt with as an additional item. Other than that the previous agreement has rolled over, if you like, and it is just these additional provisions that have also been included. Now - - -

PN23

THE COMMISSIONER: And the individuals concerned are employees, they are not contractors?

PN24

MR JACKSON: They are employees, correct.

PN25

THE COMMISSIONER: Yes, thank you.

PN26

MS DAVIS: Now, of the employee representatives, Mr Hinchcliff was nominated and voted to be the employee representative for the purposes of meeting the statutory requirements, that is, to provide a statutory declaration going to the various requirements outlined in the Act and the regulations. And, accordingly, an affidavit has been provided which does go to the various requirements. That is pretty much the negotiation. Were there any additional - - -

PN27

THE COMMISSIONER: Good, that is fine. No, I am happy with that. There was in fact, then, a negotiation as such?

PN28

MS DAVIS: Yes. Yes, as I understand it, there were meetings.

PN29

MR JACKSON: Yes, that is right. We started on 2 December and basically finished about 6 March.

PN30

THE COMMISSIONER: Okay, thank you.

PN31

MS DAVIS: Now, the terms of the agreement were reached between the company and the employees and, as you have already highlighted, clause 6 of the agreement goes to that. The other thing, too, Commissioner, is the agreement is also to be read in conjunction with the relevant parent award, that being the Transport Workers (Mixed Industries) Award 2002 as a safety net.

PN32

THE COMMISSIONER: Could I just start off with part 2.4 of the agreement at which - I am simply confused about. This is a pro forma stat dec, I expect, that the Commission gives to employers and their representatives to fill in. And 2.4 says:

PN33

Does this agreement apply only to the whole or only to a part of the single business?

PN34

And there are alternative answers or yes or no. And you have got basically two issues and you are expected to answer yes or no. In answering, yes, does that mean basically, what? What is Bartter Enterprises in the context of this matter? Is it the whole or a part of a single business? I guess it is a part, is it?

PN35

MR JACKSON: Yes - - -

PN36

THE COMMISSIONER: You are a part of Steggles - - -

PN37

MR JACKSON: Yes, just part of an operational business because there is - obviously it is a national business and there are other states that have similar work but they have their own agreement, so this is just, you know - - -

PN38

THE COMMISSIONER: So Bartter Enterprises is in fact a division or a subsidiary of the Steggles Group, am I correct in that?

PN39

MR JACKSON: No, no, no. I mean, legally Bartter Enterprises is the legal body.

PN40

THE COMMISSIONER: So it is a separately incorporated body?

PN41

MR JACKSON: Yes, yes.

PN42

THE COMMISSIONER: And it is not a subsidiary or - - -

PN43

MR JACKSON: No, no.

PN44

THE COMMISSIONER: It is a separately incorporated body?

PN45

MR JACKSON: Yes. And Steggles, really, is the brand name so there is no - no legal entity as Steggles. So that just - I think we have, sort of, done that over a period of time just - because people associate Steggles - - -

PN46

THE COMMISSIONER: No, okay. Fine. But this particular plant in Geelong is merely one part of Bartter Industries?

PN47

MR JACKSON: Yes.

PN48

THE COMMISSIONER: Yes. So it really is a part of a single business we are talking about?

PN49

MS DAVIS: It is. And, Commissioner, if you go to clause 6 of the agreement it talks about the coverage and parties bound and it clearly identifies that it is to apply at the company's operations at 41 to 45 Leather Street, Breakwater, and to those employees who are engaged in catching and transport of live birds to the processing facility. So it is clearly both a geographical as well as an operational part of the business.

PN50

THE COMMISSIONER: And it only applies to employees in Victoria, obviously?

PN51

MS DAVIS: Correct.

PN52

THE COMMISSIONER: It is the Geelong-based employees. Just in part 4, in 4.1, I am just moving through the document in terms of a number of questions I had. And it says, "What the agreement" - 4.1 -

PN53

...negotiated with an employee acting on his or her own behalf and on behalf of other employees.

PN54

And you have answered, yes, there. And it says - the following question says:

PN55

If, yes, indicate the facts which establish a basis for the Commission to be satisfied that the employee is acting on behalf of other employees.

PN56

And there is nothing in that box. Perhaps someone could just describe to me the process by which the three consultative group members were determined. Was it simply an election of the 16 employees or what was it?

PN57

MR JACKSON: Can I speak? Certainly - - -

PN58

THE COMMISSIONER: Well, I think it would be better if the employee representative spoke on this one.

PN59

MR HINCHCLIFF: Well, out of all the employees there are three pick-up crews. Each pick-up crew having a leading hand which is myself and two others. So the negotiations were with the three leading hands and Wayne and David from management.

PN60

THE COMMISSIONER: Okay. But how were those leading hands actually determined as the negotiators? What was the process? How were you selected as a person to sit across from management on behalf of the other employees to negotiate?

PN61

MR HINCHCLIFF: Well, just naturally the leader from each crew, I suppose.

PN62

THE COMMISSIONER: So was it self-selection or did management suggest that you and your two other colleagues sit across the table?

PN63

MR HINCHCLIFF: Probably suggested, yes, the three leading hands be the - - -

PN64

THE COMMISSIONER: And how were the views of other employees sought in that matter? Did they get a say in the sense that they voted or indicated or?

PN65

MR HINCHCLIFF: Well, after every meeting each leading hand went back to their own crew and discussed everything - what was put forward at the meetings and any new things that they wanted brought up through myself or the other two.

PN66

THE COMMISSIONER: Okay. So you reported back - - -

PN67

MR HINCHCLIFF: Yes.

PN68

THE COMMISSIONER: - - - after each meeting and told them what was going on?

PN69

MR HINCHCLIFF: Yes, yes.

PN70

THE COMMISSIONER: Good. Thanks a lot. Now, in section 4.3 there is a question regarding organisations of employees who have members. Do we know if any of the 16 employees are members of an organisation of employees? Any members of the Transport Workers Union, to anybody's knowledge?

PN71

MR HINCHCLIFF: No.

PN72

THE COMMISSIONER: Okay. In, I think is an answer to 5.1, (i) - these pages aren't numbered, but you say:

PN73

During the course of the above mentioned consultations the employees and relevant employees concerned endorsed the terms of the agreement.

PN74

Do you see that there?

PN75

MS DAVIS: Yes.

PN76

THE COMMISSIONER: Can somebody say to me how that was done? And perhaps the employee representative, again, could tell us in regard to that paragraph which talks about:

PN77

During the course of the above mentioned consultations the employees and relevant employees concerned endorsed the terms of the agreement and the means by which employees were informed of these matters by way of regular scheduled meetings.

PN78

Can you take us through what happened there, please?

PN79

MR HINCHCLIFF: Just, we arranged to have the meeting with Wayne and David from management and everything was put forward that we wanted discussed or any changes that we wanted. Then we would go back to all the other employees and speak with them about what the meeting was about and what was put forward and then - I say a fortnight after that another meeting would be arranged and - - -

PN80

THE COMMISSIONER: So when you got the final document, the final agreement, what happened then? Did you take it back to the employees and everyone put their hand up or what?

PN81

MR HINCHCLIFF: Yes, copies were handed out and every employee got one of those to read through and - - -

PN82

THE COMMISSIONER: Then, was there a session to explain any questions and - - -

PN83

MR HINCHCLIFF: - - - everyone was satisfied with how it all read and - - -

PN84

THE COMMISSIONER: And I notice that each of the employees have signed the stat dec in any case as being in agreement with it.

PN85

MR HINCHCLIFF: Yes, and every employee signed and - - -

PN86

THE COMMISSIONER: All right. Thanks. I notice in 5.5 there are no women bird catchers.

PN87

MR HINCHCLIFF: No.

PN88

THE COMMISSIONER: And there is no-one under 21 years of age or disabled or part-time or casuals. There is a reference elsewhere to casuals but you have no casuals, they are all basically full-time employees?

PN89

MR JACKSON: The reference to casuals, because sometimes because of the way they are paid and they need to take leave we might employ a casual person as a temporary measure, so we have that in the agreement just as a way of paying a person for a short-term time.

PN90

THE COMMISSIONER: Yes, okay. Now, in 5.8, just going over the page, and 5.9, section 170LK(4) has a requirement that:

PN91

The notice by the employer of intention to make the agreement must state that individuals can request an organisation to represent the person in meeting and conferring with the employer about the agreement.

PN92

[10.50am]

PN93

This is 170LK(4). And this is the section that deals with LK agreements, and it says in part:

PN94

The notice must also state that if any person whose employment will be subject to the agreement is a member of an organisation of employees ...(reads)... the employer about the agreement.

PN95

Now, what that requires is that when a notice is given to employees that an agreement is to be negotiated, the notice must state that if any individual is a member of an organisation entitled to represent them, now, the statement has been made earlier that no-one is a member of the - at least the TWU and possibly no other organisation, but we are not to know that. One of the 16 may well be a member but is not, doesn't for whatever reason, wish to disclose that.

PN96

But it must state that employees have a right to ask that organisation to represent them. Now, in your answer to the question you have said that it was not - that notice did not provide that information. Is that correct, that that information was not provided?

PN97

MS DAVIS: Can I just have a moment?

PN98

THE COMMISSIONER: Yes, by all means.

PN99

MS DAVIS: Commissioner, it would appear that the affidavit is correct in that a notice wasn't provided to employees. On that basis what we would request is an adjournment so that we can clarify that there has been no notice put out, and if that is the case then - - -

PN100

THE COMMISSIONER: Rather than an adjournment do you just want to go on this morning, and you know, this doesn't have to be resolved this morning necessarily.

PN101

MS DAVIS: Yes.

PN102

THE COMMISSIONER: We can just proceed on. There are other things which we need to go through which I need to clarify in my own mind.

PN103

MS DAVIS: Certainly.

PN104

THE COMMISSIONER: So it would be best to get them all on the table, I think?

PN105

MS DAVIS: Certainly.

PN106

THE COMMISSIONER: So at the moment the belief is that there wasn't notice given to the employees that they were entitled to have an organisation represent them.

PN107

MS DAVIS: That is correct.

PN108

THE COMMISSIONER: Yes, okay, thank you. In terms of the answer to the question to issue 6.2, the view is that on balance there would not be a reduction in the overall terms and conditions of employment. Now, we will come to that in terms of when we look at the agreement vis a vis the award and so-forth, the safety net award. And one of the things in the agreement which I couldn't quite work out was the wage rates which are expressed in cents per bird or something to that effect, and I will need to go through that.

PN109

Do we have any material, by the way, showing the conditions in the enterprise - the proposed agreement and the award conditions? Is there a matrix which has been determined?

PN110

MR JACKSON: We did this at the last agreement.

PN111

THE COMMISSIONER: Did you?

PN112

MR JACKSON: Yes.

PN113

THE COMMISSIONER: Okay.

PN114

MR JACKSON: And certainly the Commissioner at the time went through that no disadvantage test, and we provided a raft of information at that stage.

PN115

THE COMMISSIONER: I see.

PN116

MR JACKSON: And so that was all - and I have got - I have only got that information.

PN117

THE COMMISSIONER: Do you know offhand who the Commissioner was at that time?

PN118

MR JACKSON: Yes.

PN119

THE COMMISSIONER: Because there are some quite unusual provisions in this agreement from what I can tell. Look, it is not necessary to get that information right now. It is just by way of interest more than anything else at this stage, anyhow, but if you can find it during the morning, well, it would be of interest to me to get that information. But you haven't actually prepared a similar document on this occasion, I take it?

PN120

MR JACKSON: No.

PN121

THE COMMISSIONER: Okay, thank you. It may be necessary, I have to say, to do that. Fine. They were the issues that I had in regard to the statutory declaration. Can we go now to the agreement itself. I just want to clarify a few things in relation to the agreement. I will go first of all to clause 10.8, instant dismissal, which is basically the termination provision of the proposed agreement, which says:

PN122

The company shall have the right to dismiss any employee without notice for conduct that justifies instant dismissal, including cruelty to the livestock ...(reads)... shall be paid up to dismissal only.

PN123

Now, in that particular clause 10.8 it does seem to give a very extensive ability to the company to dismiss employees, and if I could refer to misconduct, and inefficiency in particular, which are fairly broad terms, you know, what is inefficiency? If Mr Hinchcliff, for example, reports in 15 minutes late on four or five occasions in delivery of a set of poultry to the processing plant, is that inefficiency? And what is misconduct? If Mr Hinchcliff again conducts himself - he answers back to Mr Jackson, which he may or may not do on a regular basis, is that misconduct?

PN124

It just seems to me to be very broad, because what this clause allows is the right of the employer to dismiss any employee without notice, and that means that the notice period which is provided in clause 10.1 is not applicable in relation to these matters. And it talks about:

PN125

..inefficiency, neglect of duty, misconduct -

PN126

which are all very broad terms. And I am just wondering, are people aware that this is a provision which gives the company very wide powers in relation to the employment of the individual employees. Could somebody perhaps take me through that, please?

PN127

MS DAVIS: Commissioner, what we would say in respect of that is that the agreement provisions pick up on, I guess, common concepts used in the industrial relations jurisdiction in respect of unfair dismissal laws, and as such it is impossible to be precise as to every issue which will result in instant dismissal, so on that basis the provisions have been just identified as misconduct or inefficiency, but at the end of the day those terms would be subject to obviously the concepts that underpin unfair dismissal legislation as to, well, what does warrant grounds for summary dismissal, what warrants a repudiation of the contract of employment.

PN128

THE COMMISSIONER: Yes. The unfair dismissal legislation simply gives a person who has been dismissed an opportunity to argue his or her case, and that can be a difficult, time-consuming and expensive process. It doesn't in any way justify a clause in a proposed agreement which could be construed as unreasonable, could be construed as unreasonable. Now, what I am going to here at the moment is the provision in the award regarding job security. I am just trying to find that right now. Could somebody help me on your side, perhaps? I will look here and perhaps you could look at your side.

PN129

I am just looking at the index in the award. Do you have a copy of the award with you?

PN130

MS DAVIS: No, Commissioner, I haven't brought a copy of the award with me.

PN131

THE COMMISSIONER: Well, that is difficult, because the award is the safety net provision that refers back to this agreement. You have nominated it as the award.

PN132

MS DAVIS: Yes.

PN133

THE COMMISSIONER: And we need really to talk about aspects of the award vis a vis this particular agreement, because to satisfy the no disadvantage test you have to obviously - I don't need to tell anybody here this - you have to refer to the award and refer to the agreement and show that the agreement is no significant disadvantage to the award provision. I have the award here.

PN134

MS DAVIS: The provisions I believe are found in the contract of employment sections that would relate to termination.

PN135

THE COMMISSIONER: Yes. There we go; 45. All right. I am looking at clause 45 of the award, termination of employment, and it starts off by providing the notice periods, it starts off by talking about the time for which an employee will be paid, and it says here:

PN136

The period of notice in this clause shall not apply in the case of a dismissal for conduct that justifies instant dismissal, including malingering, inefficiency or neglect of duty -

PN137

which is not all that dissimilar to what you have got in your:

PN138

..malingering, inefficiency, neglect of duty or misconduct -

PN139

or in the case of - yes, all right. So, obviously the award is not all that dissimilar to the provision in your proposed agreement. It does go further. It talks about misconduct which is broader than the award provision, but not all that significantly broader, which says:

PN140

..and the period of notice shall not apply in the case of dismissal for conduct that justifies instant dismissal.

PN141

Well, if it is good enough for the award it is good enough for the agreement, I expect. All right, okay. We will go on. The abandonment of employment clause, which is 10.9, it says:

PN142

The absence of an employee from work for a continuous period exceeding three working days without the consent of the employer and without notification ...(reads)... abandoned the employment.

PN143

Is that a provision which is in the award, do we know?

PN144

MS DAVIS: I believe it is, Commissioner, and I think you would find that it is not far from the provisions that you were just looking at for notice, but I am a little bit caught because I don't have a copy of the industrial instrument with me.

PN145

THE COMMISSIONER: Yes.

PN146

MS DAVIS: It is normally provided near the stand-down provisions.

PN147

THE COMMISSIONER: Yes. I have just looked at the termination of employment provision. It doesn't appear to be there. You think it is near where the stand-down provision might be?

PN148

MS DAVIS: I believe so, Commissioner, but I can't guarantee that because I haven't had a look at the industrial instrument in recent times.

PN149

THE COMMISSIONER: I thought you would know it off by heart, Ms Davis. But - yes, I don't see it in the termination provision.

PN150

MS DAVIS: Is it in - I think there is a section with once again contract of employment.

PN151

THE COMMISSIONER: Look, perhaps what I could do simply here is ask you, Ms Davis, to satisfy me that a provision that talks about abandonment of employment, if an individual is away for three days and doesn't notify the employer, exists somewhere in the award.

PN152

MS DAVIS: Yes.

PN153

THE COMMISSIONER: That would be fine, if you can do that.

PN154

MS DAVIS: Certainly.

PN155

THE COMMISSIONER: Because what that means is if Mr Hinchcliff for example has an accident, now, I don't think the employer would terminate employment in this circumstance, but if Mr Hinchcliff had accident, was put into hospital and no-one has notified the employer, after three days the employer can regard that as abandonment of employment and dismiss Mr Hinchcliff without any notice. Now, you know, that is just a circumstance that comes to mind, but there could be others. Mr Hinchliff gets a call from a close relative to say there has been a bad accident, can you get here immediately?

PN156

He flies up to Queensland, doesn't think about his employment, and three days later the employer writes to him and says, you haven't turned up for three days - this is not Mr Hinchcliff, because he is a leading hand, but some person who has been employed for only a short period of time and may not have, you know, got the confidence of the company entirely.

PN157

MS DAVIS: Yes.

PN158

THE COMMISSIONER: And three days go by, and he is totally preoccupied with his family crisis, and the employer sends him a letter saying, your employment is terminated. And you employ somebody else, the employee turns up a week later and says, I am sorry this has happened; I had to go to Queensland. An employer could well say, well, I am sorry, we have got somebody else in the meantime and your job is now gone. So, I just need to be satisfied on that point if I could, please. Now, the wage rates. I couldn't - - -

PN159

MS DAVIS: Commissioner, sorry to interrupt. I have got a dispute hearing at a quarter past 11.

PN160

THE COMMISSIONER: Yes.

PN161

MS DAVIS: Are there a number of other questions?

PN162

THE COMMISSIONER: There is a number of other questions, yes.

PN163

MS DAVIS: Okay. Well, I may need to notify the Commissioner concerned that I am going to be a little bit late, if that is possible.

PN164

THE COMMISSIONER: Yes. Well, perhaps my associate can do that for you.

PN165

MS DAVIS: Commissioner Foggo.

PN166

THE COMMISSIONER: Foggo.

PN167

MS DAVIS: It is a dispute.

PN168

THE COMMISSIONER: She is not very accommodating on these matters, but we will go and talk to her. And look, I think we are going to be another hour here, quite frankly; maybe not now, but at least 20 or 30 minutes. And it may be this series of questions that I have simply got to give you, that you will come back to me with answers on.

PN169

MS DAVIS: Yes. Well, that being the case, Commissioner, could we have a five-minute adjournment so I can track down my company and advise them that I am caught up in this other matter?

PN170

THE COMMISSIONER: Yes, certainly, that is quite okay.

PN171

MS DAVIS: And then we can see.

PN172

THE COMMISSIONER: Before we do that I will just let you know where I am coming from on some of these things. We need to talk about the wage rates; I need to be satisfied that those wage rates meet the safety net provision in the award. And included in that I need to talk about the provision which I take it to mean, and is this right or not, that if an individual is on sick leave they don't get any pay? If an individual is on recreation leave they don't get any pay? Because it is incorporated in the wage. Is that the provision?

PN173

MR JACKSON: It is.

PN174

THE COMMISSIONER: Well, I need to talk about that, because I feel very, very uncomfortable with that. Now, you may well say, that was in the previous agreement and was certified. I don't know whether I am going to be prepared to certify this agreement on that basis, but I need to get from the employee perspective, how they feel about that. I feel very, very uncomfortable. I personally think it is taking us back years and years and years where employees did not get paid for sick leave, where employees did not get paid for recreation leave.

PN175

Now, unless there is a wage outcome here which is very, very generous to the employees to a point where the employees can say to me, look, I am getting a wage which I am very, very comfortable with, it is so good that it provides me with incentive to do these things, I feel - you know, the problem with these sorts of provisions that take away sick leave and take away recreation leave is that they might provide an immediate but small advantage to employees, but over time the wage rate can deteriorate to the point where the employee is simply getting the wage rate that he or she would otherwise have got including recreation leave, including sick leave.

PN176

Now, I am not saying this is happening with this particular company, but this is a provision which if it becomes common will lead to that sort of outcome, and I personally am very, very uncomfortable with it. I am going to need to be satisfied with the wage outcomes for these employees. You have mentioned you have got very, very stable employment, and that is an indication that people do feel comfortable with the conditions they are on, but it is, you know, to have this occur commonly throughout the work force is something I am very uncomfortable with.

PN177

So, that is an issue. But, having said that, you have only got five minutes before you are due to start, so I think we should have an adjournment now for 10 minutes.

PN178

MS DAVIS: Yes.

PN179

THE COMMISSIONER: To enable all of these other things to be dealt with, and perhaps we could put the matter before Commissioner Foggo back till say a quarter to - 11.45, and that will give us maybe time to go through some of these things and deal with them. There are a few other issues in here, and I think in many cases it is going to be either a very brief explanation from either one of the company representatives or the employee representative, and perhaps an opportunity to get some more information at a later time, so we will adjourn now for 10 minutes and we will come back at 20 past 11.

PN180

MS DAVIS: Thank you, Commissioner.

SHORT ADJOURNMENT [11.10am]

RESUMED [11.23am]

PN181

MS DAVIS: Thank you for that.

PN182

THE COMMISSIONER: Good, Ms Davis. I understand Commissioner Foggo is not running on time herself so we will put it back to, what, 12.45 - oh, 11.45, sorry, 11.45.

PN183

MS DAVIS: That would be great. Thank you, Commissioner.

PN184

THE COMMISSIONER: Now, has any of the information we were talking about earlier come to light? Do you know who the Commissioner was on the last occasion, by the way?

PN185

MS DAVIS: I am advised that it was Commissioner Lewin.

PN186

THE COMMISSIONER: Lewin.

PN187

MS DAVIS: And the agreement was certified on 17.7.02 and the agreement number is AG2002/1851. I am also instructed, Commissioner, that Commissioner Lewin also asked a number - - -

PN188

THE COMMISSIONER: Similar questions.

PN189

MS DAVIS: - - - of issues and it was at that point that a comparative table was - well, provided by the company to satisfy the Commission's concerns.

PN190

THE COMMISSIONER: So, looking at the section on wage and related matters which sets out an amount of cents per bird, an annual leave loading allowance, a sick leave allowance and a public holiday allowance, and then we have got a total rate per chicken collected and loaded of .4 - well, it is actually 4.37 cents per bird, I take it. Yes. What does that come out to? It is effectively a payment per bird, or you get a weekly wage rate depending on how many birds you load and deliver?

PN191

MR HINCHCLIFF: Yes.

PN192

THE COMMISSIONER: And what does it normally come out to be, how many birds do you need to load and deliver to - perhaps I could ask you, Mr Hinchcliff. At the moment what is your, as a leading hand, what is your gross take home remuneration? You know, approximately?

PN193

MR HINCHCLIFF: 1300, 1200, a week.

PN194

THE COMMISSIONER: I see. Well, you are looking at a wage rate which is fairly significant then.

PN195

MR HINCHCLIFF: Yes.

PN196

THE COMMISSIONER: And what would a wage rate be for a - does that include overtime or is that a normal, sort of, 38-hour/40-hour wage rate?

PN197

MR HINCHCLIFF: That is just - that rate - that includes all overtime and - - -

PN198

THE COMMISSIONER: Well, how many hour would you normally work a week? Do you work five days, six days?

PN199

MR HINCHCLIFF: Five nights a week. Probably at the moment between 30, 35 hours a week.

PN200

THE COMMISSIONER: 30 to 35 hours?

PN201

MR HINCHCLIFF: At the moment, yes.

PN202

THE COMMISSIONER: Okay. Well, that is shedding a slightly different light on some of these things. And your remuneration is, you were saying? What is your normal gross remuneration per week?

PN203

MR HINCHCLIFF: At the moment it is around $1200 a week.

PN204

THE COMMISSIONER: $1200. My associate might apply for work as a chicken catcher. Okay. And what would a normal chicken catcher who is not a leading hand be taking home per week?

PN205

MR HINCHCLIFF: Virtually the same. I just have an allowance of an extra $25 a week for the leading hand duties.

PN206

THE COMMISSIONER: Okay. So say 1150 or thereabouts for a normal person who is not a leading hand, of that order?

PN207

MR HINCHCLIFF: Yes.

PN208

THE COMMISSIONER: Yes. Do we have specific information on that in terms of - you can sit down, Mr Hinchcliff. This information - I have heard what Mr Hinchcliff has said and I accept his statement on the record, but the documentation here doesn't give me any real information in terms of what the normal remuneration to be generated from these cents per bird rates will lead to.

PN209

MS DAVIS: Certainly.

PN210

THE COMMISSIONER: So I would like to get something on that if I could, please.

PN211

MS DAVIS: Commissioner, what we will do is when we provide you with a comparative table, which will go to, I guess, a number of the issues that you have raised, we will also make sure that the range of remuneration levels across the 16 employees is provided identifying, I guess, where there is additional allowances that would not be normally paid, i.e. the leading hand allowance. We will make sure that it is notated that there is a leading hand allowance included.

PN212

THE COMMISSIONER: What I would like to see is a table showing the typical remuneration for a base grade worker who is a chicken catcher. How much of that weekly wage is an allowance for leave loading, sick leave and annual leave and public holiday? Now, let me just clarify this, by the way. With annual leave, do individuals get paid for annual leave or not? Do you actually get a separate - when you take your four weeks leave is there a payment made or is it incorporated in your wage?

PN213

MR HINCHCLIFF: It is incorporated into the total bird rate.

PN214

THE COMMISSIONER: So just say at Christmas time this coming year you take four weeks leave, do you get any remuneration for that at all or do you just have to - or is it the remuneration you have received during the year covers that rec leave period?

PN215

MR HINCHCLIFF: It has already been received during the year.

PN216

THE COMMISSIONER: Right. I understand that. Annual leave loading being incorporated into wages is not all that uncommon. Sick leave and annual leave, in my experience, remains uncommon. Now, the company may well say and the employees may well say: Well, that is our choice. We have made that choice, it is incorporated. We have satisfied the no disadvantage test because, obviously, the remuneration levels, even if you take away the four weeks recreation leave, even if you take away, say, another one week in sick leave - and public holidays are not paid for either, I take it, they are incorporated in the wage excepting when the person works on a public holiday he gets some extra - if you take away all of those things the individual would still be getting remuneration for, in the order of - well, on the face of it, you are paid for 48 weeks a year. And on the rate we are talking about it is in the order of somewhere between 45 and $48,000 a year. Somewhere in the order - of that order.

PN217

And, obviously, by comparison to the award that will be well above the award rates, well above. But what I would like to get the company to explain to me is, and maybe, well, we still have time to do this but what is the rationale for incorporating annual leave and, say, public holiday remuneration and sick leave remuneration into the wage rate which is paid? Because if I could just take sick leave in particular. In a way sick leave is intended to spread the responsibility, if you like, for sickness across all employees.

PN218

And if I happen to be a person who has a need to have 10 days in a year whereas Mr Hinchcliff has no sick leave, at the moment I get no remuneration for that whereas Mr Hinchcliff - not for the day he is absent, I mean - whereas Mr Hinchcliff gets a full wage for the 48 weeks. And that, to me, is an outcome which falls unevenly between people. If a person is sick, genuinely sick - I am not talking here about people who are malingering or anything - but if people are genuinely sick the notion of sick leave is that they actually get paid for that and they don't, then - them and their families are sustained through that period of sick leave by reference to the wages they receive. It is a means of protecting people. A bit like Medibank in a way - Medicare.

PN219

MS DAVIS: Commissioner, I am instructed that the issue of rolling sick leave into, I guess, the compensation during the attendances at work was requested by the employees, I guess, in response to the concern that you have raised here today. What we would say is that in essence what it provides for is everyone gets paid out sick leave so the company might have saved some cents with those employees that don't fall sick had they kept with the old arrangements but in this case all employees would be paid out sick leave entitlement throughout the period of the year. And that being the case I don't think it could be seen as disadvantaging. And I guess where employees do genuinely fall sick or ill it would be up to them ultimately to make provision for that throughout the year.

PN220

THE COMMISSIONER: Well, I guess what it does, for a person who is sick, they have no advantage from it whatsoever. Is it a 10-day sick leave provision which is incorporated?

PN221

MR JACKSON: Eight. Basically it is on the calculation of eight days.

PN222

THE COMMISSIONER: Eight days. Well, for a person who is ill for those eight days and isn't paid for those eight days they finish up square?

PN223

MS DAVIS: Yes.

PN224

THE COMMISSIONER: If you are ill for more than eight days you are behind.

PN225

MS DAVIS: That is correct but - as you would be under the award provision because you have already exhausted your sick leave provision.

PN226

THE COMMISSIONER: Yes. Whereas the person who takes no sick leave is, as you say, paid out for that sick leave.

PN227

MS DAVIS: Yes.

PN228

THE COMMISSIONER: Okay. In terms of - - -

PN229

MR JACKSON: Can I just say that with regard to sick leave, to clarify that. Part of the company's rationale with sick leave right through the business is that we do have some incentives for sick leave. So, you know, there are other sections of the business also have pay outs of sick leave.

PN230

THE COMMISSIONER: Yes. Okay.

PN231

MR JACKSON: You know, for certain accruals. So it is - - -

PN232

THE COMMISSIONER: Now, what about annual leave? Was that requested by the employees as well? I can understand sick leave in the sense that, all right, it falls unevenly and if I don't take sick leave why should I have this credit over here which I get no benefit from? And the employees might argue: Well, I would rather take it in cash and then make provision for my own sick leave. But what about annual leave? Everybody has annual leave, four weeks a year. Where is the advantage to the employee or the employer in incorporating annual leave in your wages? When you come to annual leave and Bill Mansfield has been out at the pub for 48 weeks of the year and going to the TAB and there is nothing in the bank and all of a sudden I have four weeks leave and I have got no money to provide for myself or my family? Where is the sense in that?

PN233

MS DAVIS: Well - - -

PN234

THE COMMISSIONER: Or the advantage?

PN235

MS DAVIS: Again, Commissioner, I am instructed that that is a request that did come from the employees. As to the particular advantages I am not aware of what those advantages are, but what we would say is that compared to the award they are still not a disadvantage, they are being compensated for the annual leave provisions throughout the year. So, I guess, in the terms of monetary they are not disadvantaged.

PN236

THE COMMISSIONER: Now, would this particular company, as I said earlier, and I foreshadowed this when I started to talk about some of these concerns I had. I said, you know, if there is a really good remuneration package it can obviously set aside, in the employees' minds at least, some of the concerns that otherwise would be held. But one of my real concerns is that with this company, fine, I can understand the rationale that is being put.

PN237

But when the next company comes along and also has the same argument that there is no disadvantage because they can show via a spreadsheet that here is the award rate on one hand and here is our total package on the other hand and it is a neutral outcome, but the award only provides for a wage of, maybe, you know, $450 a week as opposed to a thousand dollars a week, and yet on the principle, on the principle of no disadvantage you have to accept that that is a satisfactory outcome.

PN238

Now, what that means in effect is that at a point in time somewhere in the future in the workplace, if we go along this track, Australian workers will be looking at a situation where they don't have any sick leave, it is all in the wage, they don't have any recreation leave, it is all in the wage, don't have any public holidays paid for, it is all in the wage, etcetera. And this applies not only to people on a thousand dollars a week, it applies to people on $450 a week and I feel - well, you wouldn't be getting 450, you might be getting 500, or of that order, taking into account the value of the things you are trading off, but it is a very uncomfortable notion of the way the working conditions of employees might evolve into over time.

PN239

Now, people might argue, well, that is their right to agree on those things and it is not for people in this Commission to tell people what is good for them, but it would be a very radical change in conditions. And I have to say, with absolute respect to many, many employers who are genuinely trying to do the right thing by their employees, that there is a range of employers out there who would be simply trying to get the minimum possible wage and labour cost outcome for their companies and to boost the bottom line.

PN240

And not all employers are genuine. And when you get an employer sitting across the table from an employee who possibly has little formal training in negotiation and representing their own interests and who is sitting across the table from an employer who, if they give them a hard time, might take that into account in their future employment prospects, it is a very difficult situation, I would suggest. Anyhow, that is a bit of musing by myself. But coming back to this issue of wages. You have given me broad information on the issue. I would like a spreadsheet showing how it all works out and how it results in meeting the no disadvantage test.

PN241

But having said all that, coming back to the thing that I was really concerned about. Recreation leave, where is the advantage to the employee in having that incorporated in the wage and not having it simply paid out? When you come to recreation leave you get four weeks pay. Why have the employees - and this is a question of interest on my part - why have the employees sought to have that incorporated in the wage? I can understand sick leave with the, you know, uneven spread of taking sick leave and the annual leave loading is in the same category. You are going to get that anyhow but instead of getting it every fortnight or every week, or whatever the pay arrangements are, you get it when you take your rec leave. Mr Hinchcliff, can you help me with this? Where is the advantage from your point of view?

PN242

MR HINCHCLIFF: It is probably just more money in the hand at the end of each week.

PN243

THE COMMISSIONER: But that is more money to spend often, isn't it?

PN244

MR HINCHCLIFF: And it is sort of up to the individual employee that they might put away 30 or $40 a week, or another employee might put away a hundred a week and they might have seven or eight weeks off in a year with pay to himself.

PN245

THE COMMISSIONER: Okay. So that is the way you see it. It simply gives employees options.

PN246

MR HINCHCLIFF: The company says that, you know, they would like you to take the four weeks a year holiday still - - -

PN247

THE COMMISSIONER: Well, that is part of it, too, isn't it?

PN248

MR HINCHCLIFF: - - - but there is nothing to say that you can't have your - you can have 10 weeks off.

PN249

THE COMMISSIONER: Yes. But is it also a situation where an individual could say: I don't want any time off, I want to work the whole 52 weeks. Because if you did that you would, in fact, end up with more money in the hand than you otherwise would.

PN250

MR HINCHCLIFF: Well, it does leave it open to that, yes.

PN251

THE COMMISSIONER: Yes. Does that happen? Do people normally work 52 weeks rather than taking three or four weeks off?

PN252

MR HINCHCLIFF: There are a few people that won't have too much time off.

PN253

THE COMMISSIONER: Yes. It certainly would be a disincentive. Like, if you came to December/January and the bank balance is a bit low and you know if you are going to take four weeks off you have got to find your own way through that with no remuneration.

PN254

MR HINCHCLIFF: Yes.

PN255

THE COMMISSIONER: Yes. Okay. Anyhow, you know what I want in regard to wages. Let me quickly go through it because you have got a commitment. So in regard to para 18, Public Holidays. If an individual works on a public holiday they just get normal time for the day?

PN256

MR JACKSON: If we work on a public holiday, which we sometimes do within the business because of trying to satisfy customers, the pick-up crew will pick up birds on that day or the night before and they will receive additional income for that extra. So they might work six days that week.

PN257

THE COMMISSIONER: Right. Okay. But a public holiday, at the moment it is incorporated in your wage and if you have the day off you don't get any remuneration for that day?

PN258

MR JACKSON: That is correct, yes.

PN259

THE COMMISSIONER: It is, again, strange but anyhow stranger things have happened. The paragraph at the top of the next page, Annual Leave, it talks about that matter we have just been discussing about incorporation of leave in your wage and sick leave does the same. I was a bit concerned with 25.2 regarding damage to vehicles, carelessness or negligence as deemed by the employer. The employee has to pay certain things. That was a bit of a question mark of mine, but I just note that at the moment. Para 26. It says:

PN260

In the event of an employee covered by this agreement who cannot work the employee must arrange for a replacement employee to do that shift.

PN261

I am at home ill, I might have a migraine headache, and I ring in and say: Look, I can't get out of bed, I'm ill. This paragraph requires me to hunt around and find a casual employee to do the shift, is that right?

PN262

MR HINCHCLIFF: Yes. There are a couple of casuals that we can get hold of.

PN263

THE COMMISSIONER: No, but you have to get hold of them. Your responsibility, normally, would be to ring in to the company and say: Look, I am sick - now you want to be genuinely sick and I expect you would be - but I am sick and I cannot come in today. And that, normally, is the end of the employee responsibility. The company, then, has the responsibility to find a replacement employee because if an individual is ill and this is a situation - any situation where the employee cannot work, the employee has the responsibility to find an alternative. I just cannot understand why that is being transferred from the employer to the employee.

PN264

MS DAVIS: Commissioner, I think, and once again I will be corrected by Mr Jackson if I am wrong, but I think what the history of this clause is that the three teams operate as pretty much self-autonomous teams and that was just part of them taking on the responsibilities of ensuring that the team has got the appropriate number of personnel.

PN265

THE COMMISSIONER: I could understand if there was a situation where Mr Hinchcliff rings in and he has got a migraine headache and says: I can't make it today someone else is going to have to be found. And the employer has said to him: Well, do you want me to do it or will you do it yourself? That is understandable, but this requires the employee to find an alternative. Now, perhaps - I just want some better information on that down the track. Because what I think we are going to have to do here, regrettably from everybody's point of view, particularly yours, I expect, we are going to have to come back again. And you will have your award there and all the other things, Ms Davis. And perhaps I will be in a better mood next time.

PN266

Smothered birds. Again, here, this is part 28:

PN267

Where it is determined by management that a pick-up employee or team of pick-up employees, by their actions, omissions or failure to take proper care of the bird, has caused smothering of the birds, the company will investigate the cause of the smothers and seek financial compensation.

PN268

Now, I really need to know whether that works fairly or not. It is capable of working unfairly because what the next sub-para says is: You smother 10 birds and next week the cost of those 10 birds will come out of your salary. Yes. And it does give - "where it is determined by management". Again, there is a - but I need to know what is the actual practice here. You know, is it worked fairly or does it work - some companies might say: Well, every bird that is smothered is your fault, pay for it. How many birds are smothered normally? Very many or few or?

PN269

MR HINCHCLIFF: Few.

PN270

THE COMMISSIONER: Few. Yes. Income Protection is there but you talk about the employee meeting the cost. When we say income protection, what are we meaning there by the way?

PN271

MR JACKSON: Sick leave.

PN272

THE COMMISSIONER: Sick leave.

PN273

MR JACKSON: Yes. So if a person has a long-term illness. And the current plan we have is up to 104 weeks and it is a hundred per cent of wage or income.

PN274

THE COMMISSIONER: Yes. The current plan you have. And who pays for that at the moment?

PN275

MR JACKSON: Well, at the moment the pick-up people aren't involved in that because they are not, you know, unless - - -

PN276

THE COMMISSIONER: It is a staff plan, is it - - -

PN277

MR JACKSON: It is for them - - -

PN278

THE COMMISSIONER: - - - rather than a production employee plan?

PN279

MR JACKSON: That is right. So if Paul wanted to be in the income protection he could then pay 1.4 per cent of his wage to - - -

PN280

THE COMMISSIONER: Who pays for it for staff?

PN281

MR JACKSON: Well, it is - no, sorry, it is not for staff but it is for wages employees.

PN282

THE COMMISSIONER: Yes, but you were saying you have a plan at the moment.

PN283

MR JACKSON: Yes.

PN284

THE COMMISSIONER: But it doesn't cover the employees we are talking about here today.

PN285

MR JACKSON: No, but it does cover - it covers the other production employees covered by other agreements.

PN286

THE COMMISSIONER: And who pays for that? Do they pay for it or does the company pay for it?

PN287

MR JACKSON: They - we pay 0.99 per cent and they pay 0.41 per cent.

[11.50am]

PN288

THE COMMISSIONER: And this one you are asking the employees to pay 1.4 per cent? Yes. Okay. And the employees have agreed with that. I notice there is a lot of signatures here and so-forth. That is okay. All right. Look, we have now - Ms Davis, I am sorry to call you back again, and the company, but I think we are going to have to come back again. You have heard my concerns, and I think we are going to have to list it again for another hearing, and I know that is inconvenient to people; I am sorry about that. But it is something which as I have said to you during the proceeding this morning, I feel - I do feel uncomfortable about it. I have been satisfied on some of the things, particularly the remuneration levels, and had you come back and said that these employees are earning $25,000 a year it certainly wouldn't have been endorsed by me.

PN289

It might have been endorsed by somebody else, but it wouldn't have been endorsed by me. But you have said something quite radically different to that, and that has helped your cause a little. Now, when would it be convenient for you to come back? Is there a particular time? I am looking here at my diary, say in a fortnight's time, 27 May.

PN290

MS DAVIS: Commissioner, would it be possible to perhaps put it back to the following week?

PN291

THE COMMISSIONER: Yes, of course.

PN292

MS DAVIS: So that would be the week commencing 2nd - - -

PN293

THE COMMISSIONER: No, I am sorry, I am occupied the whole of that week in an arbitration that will go the full week. That is the week commencing 2 June you are talking about?

PN294

MS DAVIS: Yes.

PN295

THE COMMISSIONER: Well, I am comfortable about Monday, 9 June if that is - it is a public holiday; the 11th?

PN296

MS DAVIS: The 11th would be fine, Commissioner.

PN297

THE COMMISSIONER: The 11th.

PN298

MS DAVIS: What time would you be - - -

PN299

THE COMMISSIONER: 10 o'clock. And we will order transcript in this matter, too, to be provided to the parties.

PN300

MS DAVIS: Yes. Commissioner, would you like the comparative table prior to that hearing to enable you - - -

PN301

THE COMMISSIONER: It would be helpful, certainly.

PN302

MS DAVIS: Certainly.

PN303

THE COMMISSIONER: As early as it is convenient for you to provide it.

PN304

MS DAVIS: Yes.

PN305

THE COMMISSIONER: Good. All right. Well, this matter is - anything else you want to say, Ms Davis, before we finish?

PN306

MS DAVIS: No, Commissioner.

PN307

THE COMMISSIONER: Mr Jackson, do you want to - - -

PN308

MR JACKSON: No, thank you.

PN309

MR HINCHCLIFF: No.

PN310

THE COMMISSIONER: Okay. Good. This matter is now adjourned and we will come back on the date we have set. Thank you.

ADJOURNED UNTIL WEDNESDAY, 11 JUNE 2003 [11.52am]