AG2003/5033, Transcript of Proceedings [2003] AIRCTrans 3065 (17 July 2003)

AUSCRIPT PTY LTD
ABN 76 082 664 220

Level 4, 179 Queen St MELBOURNE Vic 3000
(GPO Box 1114 MELBOURNE Vic 3001)
DX 305 Melbourne Tel:[phone] Fax:[phone]

TRANSCRIPT OF PROCEEDINGS


O/N 3575

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER LEWIN

AG2003/5033

APPLICATION FOR CERTIFICATION
OF AGREEMENT

Application under section 170LJ of the Act
by Bodyguard Security Services and Another
for certification of the Bodyguard Security
Services Certified Agreement with Employees
2003

MELBOURNE

11.33 AM, FRIDAY, 4 JULY 2003

PN1

MR R. GRAHAM: I seek leave pursuant to section 42, subsection 3, in order to represent the applicant in this matter and I am assisted by the applicant, Mrs Ann Obeid, and the representative of the employees, Mr Andy Vertsonis.

PN2

THE COMMISSIONER: How is that spelt - Mr Vertsonis' name?

PN3

MR GRAHAM: V-e-r-t-s-o-n-i-s.

PN4

THE COMMISSIONER: Good, thank you. Now, there has been some correspondence about this. Is this the matter that you sent me an email about?

PN5

MR GRAHAM: That is correct, Commissioner, the - - -

PN6

THE COMMISSIONER: And you were seeking to comply with the roster arrangements that are set out in my letter of 2 July within 14 days, is that correct?

PN7

MR GRAHAM: The letter that - yes, the 2 July was the letter. That is correct, Commissioner.

PN8

THE COMMISSIONER: Yes. So you are seeking time to - - -

PN9

MR GRAHAM: We will need to in order to produce the amount of information the Commission required in this matter.

PN10

THE COMMISSIONER: I just wanted to clarify that this is the matter in respect of which that message was received. That was received the day before yesterday. I was absent in the country yesterday so I have only just caught up with that. It was received late in the afternoon of the day before yesterday. I just wanted to clarify that this is the file in respect of which you sent the message.

PN11

MR GRAHAM: Yes. We sent that to - - -

PN12

THE COMMISSIONER: That is fine. I have no difficulty with that. Could I just ask you a question about this application? As I say, I was absent from Melbourne yesterday but I think in the message that you sent me you referred to employees of the company working in night clubs, is that right?

PN13

MR GRAHAM: No, if they work at clubs, venues, and actually work at some universities in the gatehouse.

PN14

THE COMMISSIONER: Well, what do you mean by clubs?

PN15

MR GRAHAM: Licensed clubs, not nightclubs.

PN16

THE COMMISSIONER: Which clubs do - - -

PN17

MR GRAHAM: Excuse me. Bars.

PN18

THE COMMISSIONER: Sorry?

PN19

MR GRAHAM: I am just informed bars.

PN20

THE COMMISSIONER: Bars?

PN21

MR GRAHAM: Yes. Licensed bars.

PN22

THE COMMISSIONER: Is that right?

PN23

MR VERTSONIS: Yes, that is right.

PN24

THE COMMISSIONER: Very well. Could you also provide me with the names of the venues in which the employees are employed, please, when you provide that information? Now, as I understand it from Dr Dorney who produced the report you provided representative rosters to him.

PN25

MR GRAHAM: Yes, at the time that the ballot was conducted.

PN26

THE COMMISSIONER: Now, when you say representative rosters, what does that mean?

PN27

MR GRAHAM: In fact, Commissioner, I think I have indicated in the e-mail that when rosters are prepared for the employees to work what the employees work are generally set or pre-determined rostered hours and as such there are no rosters to present to the Commission. What the employees have signed off on in each instance is what is known as an incident register which is maintained - - -

PN28

THE COMMISSIONER: I understand what you are telling me about that. What I was trying to establish was precisely what you mean when you refer to representative rosters so that what you mean by that is the information that was supplied to Dr Dorney was - - -

PN29

MR GRAHAM: Hours worked.

PN30

THE COMMISSIONER: - - - was actual hours worked.

PN31

MR GRAHAM: Hours worked.

PN32

THE COMMISSIONER: All right. So we may be at a little bit of cross-purposes in relation to the discussion of so-called rosters or representative rosters or actual rosters, this terminology might be causing some confusion. In the letter I require that you provide certain things. The first dot point in the letter refers to employees make a declaration that they have seen the record of their rostered working hours to be relied upon for the purpose of the no disadvantage test.

PN33

MR GRAHAM: Yes.

PN34

THE COMMISSIONER: And I understand what you are saying is, well, look, those employees weren't issued with a roster per se as a piece of paper saying that you will work these hours, is that what you are telling me?

PN35

MR GRAHAM: That is correct.

PN36

THE COMMISSIONER: Well, that is all right, that doesn't matter. You don't need to produce those documents if they were never produced, but what you do need to do is to produce a record of the hours that the employees actually worked and have them authenticate that those are the hours that they worked.

PN37

MR GRAHAM: Yes.

PN38

THE COMMISSIONER: For the period in question. So I don't think you need to go to the extent of collecting all these incident reports or anything of that nature. You would, I imagine, have some sort of payroll arrangements or the company would have some sort of payroll arrangements?

PN39

MR GRAHAM: We can do that.

PN40

THE COMMISSIONER: Yes, and I anticipate that those payroll arrangements would, by necessity, have to record the number of hours worked and when they were worked for the period in respect of which I am seeking the information, all right?

PN41

MR GRAHAM: Yes, that could be supplied, yes.

PN42

THE COMMISSIONER: Well, I would suggest that when you communicate with the employees in accordance with the directions that you simply state to them what the company says is the details of the hours that they worked in the relevant period and ask them to authenticate it. So that that should include the number of hours worked and the time when they were worked. So that if someone worked between 6 pm and midnight at a bar and they have been paid for that, they need only authenticate that that is correct in the relevant period. If they worked between 9 pm and 2 am likewise.

PN43

And on particular days, I assume this is recorded for the purposes of payment, and that they simply authenticate that those were the hours that they worked and those were the hours in respect of which they received payment. I am not interested in how much they were paid. It is the hours and when they were worked that I am interested in. And the purpose of this is to produce an actually experienced historical record of work performed, number of hours on each day and the times between which the work was performed. You probably follow why, I think.

PN44

MR GRAHAM: Yes.

PN45

THE COMMISSIONER: I think you sent this to Mr Dorney, didn't you?

PN46

MR GRAHAM: Yes, we sent this on 14 May, Commissioner.

PN47

THE COMMISSIONER: That is right. Well, he is not going to charge you, you are very fortunate. He thinks he is going to charge us but fortunately since he won't be sending a cash account he is going to incorporate it in a charge that has already been made against the Commission for other services so I think you are getting this report for free on the basis of his delay. But the purpose of obtaining the information which is referred to in the letter is to, rather than conducting a no disadvantage test on representative rosters it will be conducted on the actual rosters of the employees employed by the company during that 13-week period.

PN48

Now, when I say rosters, what I mean by rosters is the hours worked by the employees in that period of time. So it will be a different no disadvantage test and it won't be at your expense. So there will be no expense for the original report due to Dr Dorney's decision because of the delay as referred to in his letter. And to the extent that the no disadvantage test will be run at my direction on the actually experienced hours work, that will be a matter that the Commission will be responsible for. There will be no charge arising to the company or yourself as a result of that.

PN49

MR GRAHAM: If I can just indicate to the Commission that the reason why I actually sent this direct to Dr Dorney was that when he and I met in April, the previous month, and we were addressing two other applications at the time and I mentioned to him that there was a pending application coming through and he suggested I send it direct to him, that was the only reason why I did that. That was the only reason because of - - -

PN50

THE COMMISSIONER: I see. Well, you would have been within your rights not to pay him under those circumstances. But nevertheless as it turns out that issue doesn't arise. Now, I think from what I have said I think that should provide a more convenient means by which you can produce the information and I am happy for you to do so within the time proposed.

PN51

MR GRAHAM: Do you still require - or does the Commission still require that each employee fill in a statutory declaration accompanied with their 13-week - - -

PN52

THE COMMISSIONER: Well, is there - there is some problem with that I gather. As a matter of convenience - - -

PN53

MR GRAHAM: Only for our logistics to organise employees to go to a Justice of the Peace or the local police, etcetera, because there is something like 14 establishments that the employer provides services to so the employees are all over the place.

PN54

THE COMMISSIONER: All right.

PN55

MR GRAHAM: Unless you want a covering letter or something to be signed off saying: This is a true and accurate account of the hours that I - - -

PN56

THE COMMISSIONER: No, I want them to make a signed statement and I want them to sign the contents of the statement. I think the real issue you are raising is whether everybody has to find a Justice of the Peace or a person authorised to witness a statutory declaration. I would be prepared to vary the direction to the extent that it should be independently witnessed in each case and not by a person with any association with the company. So that in other words, if an employee chooses to have their spouse independently witness the signature, that will be sufficient - or a friend.

PN57

MR GRAHAM: Or partner.

PN58

THE COMMISSIONER: But someone who is not employed by the company and has nothing to do with the management of the company.

PN59

MR GRAHAM: Certainly. And do you wish that to be forwarded direct to the Commission?

PN60

THE COMMISSIONER: And that person needs to identify themselves. They just have to write their name and address as well as their signature.

PN61

MR GRAHAM: Does the Commission require that material to be forwarded direct to the Commission?

PN62

THE COMMISSIONER: Yes.

PN63

MR GRAHAM: Yes, okay.

PN64

THE COMMISSIONER: I think that takes care of that matter does it not? I can't conduct the no disadvantage test on those rosters until I receive that information.

PN65

MR GRAHAM: Do you wish me to go through the introductions or will we leave it at this stage?

PN66

THE COMMISSIONER: I think we might as well leave that. You could do it in writing if you wish.

PN67

MR GRAHAM: Because I was just going to - - -

PN68

THE COMMISSIONER: If you were to write a letter to me in support of the application setting out the grounds upon which the agreement should be certified and my calculations reveal that the agreement passes the no disadvantage test I will certify it without any further attendance by the parties.

PN69

MR GRAHAM: Because we had actually provided some material here in accordance with what Dr Dorney had said but that is fine, I will put that in the written submission, yes.

PN70

THE COMMISSIONER: Yes. Very well. So I will adjourn this matter. I will ask Dr Dorney to expeditiously complete the NDA test this time and I am sure he will. I have discussed this matter with him, I have discussed the issue of delay with him and I have told him that you are concerned about the matter and that there will be further steps that will need to be required and they will have to be attended to expeditiously. Thank you.

PN71

MR GRAHAM: Very well.

PN72

THE COMMISSIONER: I will reserve my decision. Thank you.

PN73

MR GRAHAM: Thank you, Commissioner.

ADJOURNED INDEFINITELY [11.46am]