AG2003/5359, Transcript of Proceedings [2003] AIRCTrans 3073 (17 July 2003)

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TRANSCRIPT OF PROCEEDINGS


O/N 3585

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

DEPUTY PRESIDENT HAMILTON

AG2003/5359

APPLICATION FOR CERTIFICATION
OF AGREEMENT

Application under section 170LK
agreement with employees (Division 2)
of the Act by Inroads Pty Ltd for
certification of the Inroads Pty Ltd
Enterprise Bargaining Agreement 2003

MELBOURNE

10.40AM, FRIDAY, 4 JULY 2003

PN1

MR P. KANEEN: I appear for Inroads Pty Ltd.

PN2

THE DEPUTY PRESIDENT: Thank you very much, Mr Kaneen. Right, we have got here an application to certify an Agreement under section 170LK of the Workplace Relations Act 1996. We received a range of documentation. The relevant forms have been lodged. We have also received by fax a copy of an agreement certified in Print PR911138 Inroads Pty Ltd which I understand to be in identical form to the one before me. Is that correct, Mr Kaneen?

PN3

MR KANEEN: Yes.

PN4

THE DEPUTY PRESIDENT: Right, thanks for that. Well, look, I will certainly take that into account and thank you for faxing it through to me. Could you just deal with this issue, Mr Kaneen, for me? First of all just identify which areas the Agreement goes below the Award. Okay, and then identify the additional benefits and so on which I understand you say makes the Agreement pass the no disadvantage test even though in some areas there may be - it may go below the Award provision. Could you just take me through that slowly, thank you for that.

PN5

MR KANEEN: Certainly. Stand?

PN6

THE DEPUTY PRESIDENT: Yes, please do.

PN7

MR KANEEN: Well, the two prominent areas in which the - on the face of it the Agreement provides for lesser than the Award, fundamentally the overtime factor for greater than two hours - 2-1/2 hours worked in any one day.

PN8

THE DEPUTY PRESIDENT: Okay, so let us get that straight so that - - -

PN9

MR KANEEN: Okay. The Award provides for time and a half for the first 2-1/2 hours overtime worked, I believe, in the ordinary working day and double time thereafter and all work performed on a Saturday, the first three hours are also at time and a half and any time thereafter at double time.

PN10

THE DEPUTY PRESIDENT: Right.

PN11

MR KANEEN: The Inroads Agreement provides for an overtime factor of 1.6 times ordinary time for all overtime worked with the exception of Sundays. In actual fact due to the mechanics of the calculations of the wages and the incorporation of RDOs into the base rates, the payroll factor is 1.6842 for a permanent employee for all overtime worked with the exception of Sundays. So that was implemented and agreed in previous enterprise agreements and due to the - which we will probably get to - the higher base rates in the Award, when that is all factored out and comparative hours are analysed, results in still a higher benefit to employees than provided for under the Award.

PN12

THE DEPUTY PRESIDENT: Right. By what sort of factor is it higher?

PN13

MR KANEEN: Well, if I could just do one example - and time is against me in this particular instance.

PN14

THE DEPUTY PRESIDENT: No, that is fine.

PN15

MR KANEEN: I worked on one full-time employee and did a comparison of hours worked - - -

PN16

THE DEPUTY PRESIDENT: This is one existing employee?

PN17

MR KANEEN: One existing permanent employee, long standing.

PN18

THE DEPUTY PRESIDENT: Yes.

PN19

MR KANEEN: On the week commencing Monday, 28 April '03 and concluding Saturday, 3 May 2003 on that week - it is a particularly good example because 9.5 hours were worked on the Saturday. Under the Inroads system, which includes rates which are applying in the new 2003 Enterprise Agreement, excluding meal and living away from home allowances - the gross weekly pay there was $1195 approximately under the Inroads 2003 Enterprise Agreement and under the Award the gross entitlement was approximately $1043. So based on those calculations, we are saying an approximate $150 advantage to the employees.

PN20

THE DEPUTY PRESIDENT: So what was the first one, the Inroads Agreement one?

PN21

MR KANEEN: Approximately $1195.

PN22

THE DEPUTY PRESIDENT: And this was for what, a week's work?

PN23

MR KANEEN: For one week's work in the week specified.

PN24

THE DEPUTY PRESIDENT: Yes. That involved 9.5 hours of overtime?

PN25

MR KANEEN: On a Saturday and overtime on every week day ranging from 1.5 to 3.5 hours. There were five week days worked in that week.

PN26

THE DEPUTY PRESIDENT: I suppose that difference was gained by the much higher hourly rate, was it?

PN27

MR KANEEN: Yes.

PN28

THE DEPUTY PRESIDENT: And what is the difference in the hourly rate?

PN29

MR KANEEN: The different in hourly rate for that category of employee, which is a level 4 under the Award and under the Agreement, was 13.82 under the Award and 15.88 under the Inroads Agreement, which is $2.08 - - -

PN30

THE DEPUTY PRESIDENT: 15 what?

PN31

MR KANEEN: 15.88 - eight, eight.

PN32

THE DEPUTY PRESIDENT: Right.

PN33

MR KANEEN: $2 plus.

PN34

THE DEPUTY PRESIDENT: Per hour?

PN35

MR KANEEN: Per hour.

PN36

THE DEPUTY PRESIDENT: That is quite a significant increase per hour.

PN37

MR KANEEN: Yes.

PN38

THE DEPUTY PRESIDENT: Yes, I understand. Well, really the 1.6 in that case would almost equal the overtime rate, wouldn't it, given the higher hourly rate?

PN39

MR KANEEN: Well, we are saying it is in excess.

PN40

THE DEPUTY PRESIDENT: Yes, I understand.

PN41

MR KANEEN: Yes, because of the higher hourly rate and, of course, Sundays is not an issue because double time under the Agreement as well.

PN42

THE DEPUTY PRESIDENT: So you work a lot of overtime, do you?

PN43

MR KANEEN: In the season. It is a seasonal industry, as you understand, and, yes, sometimes it can be quite significant overtime, but generally not in excess of 10 hours on a Saturday and if you use that example I think you can fairly safely assume that they would still be significantly better off under the Agreement.

PN44

THE DEPUTY PRESIDENT: No, I think it is - - -

PN45

MR KANEEN: There are safety considerations in working in that industry in excess of 10 to 12 hours.

PN46

THE DEPUTY PRESIDENT: Yes. Excellent, thank you for that. Is there anything else you want to say about the Agreement?

PN47

MR KANEEN: Well, I do have this submission which essentially mirrors the contents of the statutory declaration if the Commission wants to go through that.

PN48

THE DEPUTY PRESIDENT: No, there is no need to do that. The statutory declaration is on file. That would simply waste your time and mine and there is no point in doing that. I thank you for those submissions. On the basis of the submissions put today and the statutory declarations filed I am satisfied that the Agreement meets the statutory test for certification. I will certify the Agreement and a certificate of certification will be issued as soon as possible. Thank you very much for coming. This matter stands adjourned.

ADJOURNED INDEFINITELY [10.48am]