AG2002/5940, Transcript of Proceedings [2003] AIRCTrans 2103 (2 June 2003)

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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER LAWSON

AG2002/5940

APPLICATION FOR CERTIFICATION
OF AGREEMENT

Application under section 170LK of the Act
by Pyramid Foods Pty Limited for certification
of the Pyramid Foods Pty Limited Certified
Agreement

SYDNEY

11.15 M, FRIDAY, 16 MAY 2003

Continued from 6.12.02

PN579

THE COMMISSIONER: I'll take appearances again in this matter.

PN580

MR M. IVANCIC: Commissioner, Mark I-v-a-n-c-i-c, for Pyramid Foods.

PN581

THE COMMISSIONER: Thank you, Mr Ivancic, and who is appearing with you today, Mr Ivancic?

PN582

MR IVANCIC: It's MATTHEW ZAHORSKY, an employee representative.

PN583

MR ZAHORSKY: Z-a-h-o-r-s-k-y.

PN584

THE COMMISSIONER: Thank you, Mr Zahorsky. Well, the matter before the Commission is an application filed pursuant to section 170LK of the Workplace Relations Act for the certification of an agreement. This matter has quite a chequered history. It was first filed on 13 November 2002 and dealt with by the Commission on 6 December 2002. On that date the respondent employer was represented by a bargaining agent under the name of Enterprise Initiatives.

PN585

Suffice to say that the Commission's concerns with the then agreement were not satisfied and the employers agent was asked to provide a range of clarifications prior to the certification of the proposed agreement. As a consequence, on 18 December, Enterprise Initiatives provided a number of explanations and undertakings with regard to the proposed agreement. Those explanations and undertakings were not accepted by the Commission.

PN586

On 23 January, the Commission wrote to the bargaining agents with comments on the explanations given. The Commission was then of the view that the then proposed agreement required substantive changes and or amendment in order to satisfy the provisions of section 170LK. The respondent was given a month to make the necessary amendments to the proposed agreement.

PN587

On 14 February, the bargaining agent sought a relisting of the application for certification. On 6 March 2003, Mr Ivancic contacted the Commission seeking clarification of certain matters regarding the amended agreement. He indicated that he may represent himself in future proceedings. By fax to the Commission dated 12 March, Enterprise Initiatives then advised that they no longer represented the respondent.

PN588

As I understand the current position, a new agreement has been made and was put to the employees for them to ballot upon on 18 March. By letter to the Commission on 4 April, Mr Ivancic sought a relisting of the matter for the certification of the revised agreement. Mr Ivancic also supplied another statutory declaration in support of the application. That statutory declaration was dated 3 April 2003.

PN589

Insofar as the employees acceptance of the new agreement is concerned, I note that there is evidence on the file of the outcome of the employees ballot that was held on 18 March. The scrutineers of that ballot attest to the fact that the ballot outcome was 50 votes in favour of accepting the agreement and three against. My only concern with regard to that ballot is that that number of employees does not represent 50 per cent of the workforce. The agreement is intended to cover 116 employees. I wonder if you could explain that at first instance for me, Mr Ivancic.

PN590

MR IVANCIC: Yes, Commissioner. We had posted a notice at two separate premises that are covered by the Pyramid Foods Agreement. We also attached a notice to all employees pay slips when the notice was posted. Also, I had instructed managers within each premises to approach each individual to make sure that they were aware of the notice and of our application for the proposed certified agreement.

PN591

Everyone was made aware of it and of the date that the ballot was to be performed. It was obviously a free choice of the employee to attend that ballot and we did try, as far as possible, give everybody the opportunity to attend the ballot so we held it on two separate dates, one on the 17th at the Parklea location. At Seven Hills we held it on two separate dates, on the 17th and the 18th to give everybody the opportunity to attend. So, Commissioner, the number that attended were those who freely chose to attend.

PN592

THE COMMISSIONER: Thank you for that explanation.

PN593

MR IVANCIC: Thank you, sir.

PN594

THE COMMISSIONER: No one insists that voting is compulsory in ballots of this nature and I think that might have been coinciding with another vote that was taking place in New South Wales at the time or petty close to it. I'm satisfied that with that explanation as to the employees participation in the ballot process. Now, will you deal with the application more directly, Mr Ivancic?

PN595

MR IVANCIC: Commissioner, as you know, I'm not fully experienced in making these submissions. Would you like me to go through in detail anything in particular?

PN596

THE COMMISSIONER: Perhaps you need to satisfy me first that all of the matters that I raised back in my correspondence to your former representatives, that all of those matters were dealt with and included in the new agreement.

PN597

MR IVANCIC: If I may, Commissioner, refer to the undertakings of which there are nine separate undertakings that have become amendments to the original agreement submitted. I feel that they cover all of your concerns made on our previous lodgement, namely, I think one of the major ones were the rates that didn't comply or meet the no disadvantage test on our last occasion. They have been amended upwards quite significantly. I suppose without going through each one point by point, I'd assumed that you have already read each one. If you haven't, Commissioner, we could go through those.

PN598

THE COMMISSIONER: No, I just wanted you to tell me on the public record that my earlier concerns have in fact been dealt with and have been included in the agreement and you've done that. Can I take you to the issue of the wage rates. One of the issues that I did raise was the fact that the level two and level one employee rates included junior rates for under 16 up to age 20. Unless I'm reading the agreement incorrectly, that infers that supervisors may in fact be under 20 years of age and that seemed to me rather incongruous because there's no equivalent to those wage rates in the award and it seemed rather incongruous if perhaps on the face of it unfair that employees under 20 years of age may be called upon to supervise and to train other employees but not receive an adult rate of pay. Is that correct?

PN599

MR IVANCIC: Yes. Well, Commissioner, there are a number of employees under the age of 21 who are given roles such as crew trainer or a team leader. This is in line with the number of employees that we have under the age of 21 of 116 that are employed by the company. I'll be more accurate.

PN600

THE COMMISSIONER: 108?

PN601

MR IVANCIC: Yes, 108 are actually under the age of 21.

PN602

THE COMMISSIONER: Yes, that's a very, very high youth employment figure and one wonders, there's only eight persons over 21 years of age supervising 108 under 21 aged persons?

PN603

MR IVANCIC: Not included in those are the management. This is only crew so on top of that, the 116, each restaurant would have at least six managers supervising those staff. So the supervisory roles that they fulfil aren't what we would term management roles. They're more - - -

PN604

THE COMMISSIONER: Team leader roles. I understand.

PN605

MR IVANCIC: - - - a team leader, a station trainer teaching them how to make a burger or cook fries or so forth. What the level two, the opportunity that it provides for those people is that as they become skilled at multiple stations, there's an opportunity for us to reward them for the extra commitment that those individuals have made or extra skills that they have gained within the workplace. So that level two gives us that opportunity to reward them for that increased effort and skill, whether they be 16 or 21.

PN606

THE COMMISSIONER: Yes. Do I take it from reading the agreement that you don't employ casuals?

PN607

MR IVANCIC: We had, I suppose, rephrased the part time category, I suppose, in that we have made part timers have similar types of benefits or in our staffs mind benefits that a casual employee would have in that rather than - - -

PN608

THE COMMISSIONER: But you strike a rate of pay per hour rather than paying a casual loading as such, as I understand it.

PN609

MR IVANCIC: Yes, but that rate of pay is equivalent or higher to what that casual loading would have given them and it gives both of us, the employer and the employee a lot more flexibility. We found that when there was a casual part time, full time arrangement, we would have no employees that really wanted to be a part timer because there's this perception in their mind that they're taking a pay cut to become a part timer or even a full timer. Nobody wanted to be in that position so we found that there was a dual benefit to, I suppose, propose a part time category that included all the benefits of a casual and eliminate that casual -

PN610

THE COMMISSIONER: And you adjust your workload by engaging more part timers, is that correct?

PN611

MR IVANCIC: Do we adjust our workload?

PN612

THE COMMISSIONER: Your various workloads at different times rather than engaging casuals to cover an additional workload, you merely reallocate more hours to your already existing part timers.

PN613

MR IVANCIC: Yes, that's correct. I think, Commissioner, last time you had concerns that there were quite a few things mixing from our agreement that were contained in the award.

PN614

THE COMMISSIONER: Well, I note the agreement is now sheeted back and is underpinned by the award.

PN615

MR IVANCIC: Exactly, sir.

PN616

THE COMMISSIONER: Yes, I don't have any difficulty with that any more because it does have that underpinning provision and that seemed to be something that your former representatives seemed to have some sort of pathological distrust or dislike about. Why, I don't know.

PN617

MR IVANCIC: True, sir, and I insisted that they go in there. There's no reason for us not to have that there and for the benefit of both employer and employee and I think that's been -

PN618

THE COMMISSIONER: Yes, it acts as a protection for both parties, there's no doubt about that and particularly with regard to the engagement of so many young people.

PN619

MR IVANCIC: Absolutely.

PN620

THE COMMISSIONER: It gives both those young people an assurance and I think to a very great degree an assurance to their parents.

PN621

MR IVANCIC: Absolutely.

PN622

THE COMMISSIONER: Well, the only other thing that concerned me with the agreement, copies of the agreement that you've filed, Mr Ivancic, is the fact that there is provision for the employees to sign the agreement but there's no evidence that anybody has signed it. Can you explain on the public record what actually has transpired.

PN623

MR IVANCIC: Commissioner, I was also confused by that. The only reason that I could give was that this particular, the formatting of this agreement is similar to what was used in lodging Australian Workplace Agreements.

PN624

THE COMMISSIONER: I know and that was a problem right from the outset.

PN625

MR IVANCIC: Exactly.

PN626

THE COMMISSIONER: You sat through all the earlier proceedings.

PN627

MR IVANCIC: Yes, and I know your feelings on that too, Commissioner. So the formatting requiring signatures be attached to the agreement, that's relating to workplace agreements. There were questions in the statutory declaration, the form 49 which referred to that and I don't believe that we required signatures actually attached to this agreement as there wasn't really a single employee representative that was speaking on behalf of anyone in order to sign the agreement on behalf of other people and I think going to the ballot was sufficient voice for the employees to say that they agree with the terms and conditions of this agreement.

PN628

So I suppose that's why there's no signatures attached to it because I didn't feel that that was necessary in this application.

PN629

THE COMMISSIONER: Was there any sort of employee representative group from the two sites?

PN630

MR IVANCIC: No, actually there wasn't. We'd made it clear and also in the notice of intent that they had the right to be represented and whether that be by any employee organisation. I think it was made very clear in the last paragraph of the notice. It said that prior to the ballot that they're encouraged if they so choose to have a representative represent them on their behalf, whether that be a parent, guardian or an employee organisation if they're a member and the organisation is entitled to represent their industrial interests, to meet and confer with me about the agreement prior to its making.

PN631

THE COMMISSIONER: I note the revised notice of intention met all necessary criteria of section 170LK in contrast to the notice of intent that was earlier put to me. I have no difficulty with the notice of intent. Does each employee now have a copy of the agreement or will each employee have a copy of the agreement and will a copy of the agreement be available in each of the workplaces.

PN632

MR IVANCIC: Absolutely. A copy of the agreement was put into the workplace on the noticeboard in the staff, the crew areas. Any employee that wished a copy to be taken home for parents to read were given a copy and that situation remains, it is freely available. It's not, you know, hidden in the bottom drawer of some filing cabinet. It's there on the wall and free for anyone to read and discuss.

PN633

THE COMMISSIONER: Thank you, Mr Ivancic.

PN634

MR IVANCIC: Thank you, Commissioner.

PN635

THE COMMISSIONER: On occasions such as this when I'm asked to certify a non union agreement, I ask representatives of the employees whether they have any questions of the Commission in relation to the certification of this agreement. So perhaps, Mr Zahorsky, in a general submission, do you support the submissions made by Mr Ivancic today?

PN636

MR ZAHORSKY: Yes, Commissioner.

PN637

THE COMMISSIONER: Were you in any way directly involved in representing employees or raising matters with management on their behalf?

PN638

MR ZAHORSKY: No.

PN639

THE COMMISSIONER: Do you understand as the employee representative here today that my certifying this agreement gives it legal force?

PN640

MR ZAHORSKY: Yes.

PN641

THE COMMISSIONER: You do. All right then, I think that's all I need to hear from you gentlemen. This matter is an application by Pyramid Foods Pty Limited and its employees for the certification of an agreement under section 170LK of the Workplace Relations Act. The agreement applies to the operations of the employer at two sites, one in Seven Hills in New South Wales and one at Parklea in New South Wales.

PN642

The employer is a constitutional corporation for the purpose of subsection 170LI(a) and thus the agreement is applicable to a single business, part of a single business or a single place of work for the purpose of subsection 170LI(b) of the act. On the basis of the submissions of the parties and the statutory declaration submitted in accordance with rule 49(2), I am satisfied that the agreement meets the relevant requirements of section 170LK.

PN643

I'm also satisfied on what is before me that there are no grounds for refusing the agreement under section 170LT or section 170LU of the act. I'm satisfied that no organisation of employees notified the employer in writing that it wished to be bound by the agreement. I've had identified to me those relevant employees referred to in subsection 170LT(7) and I'm satisfied those employees were consulted and were informed of the matters described in subsection 170LK(7) in an appropriate manner and that the effects or the terms of the agreement were properly explained to them.

PN644

Consequently, I'll certify the agreement under section 170LT of the act with effect from today's date, 16 May 2003 and the agreement shall remain in force until 15 May 2006. Perhaps just a comment to conclude this matter, Mr Ivancic, for your benefit in future, you might be well served to consult with an experienced employer representative organisation on future occasions if you have need to refer matters to this Commission. That concludes the matter and the Commission will adjourn.

ADJOURNED INDEFINITELY [11.35am]