AG2002/6447, Transcript of Proceedings [2003] AIRCTrans 349 (4 February 2003)

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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT O'CALLAGHAN

AG2002/6447

APPLICATION FOR CERTIFICATION OF
AGREEMENT

Application under section 170LJ of the Act
by the Shop, Distributive and Allied Employees
Association and Another re Harris Scarfe
Agreement 2002

ADELAIDE

10.00 AM, TUESDAY, 21 JANUARY 2003

PN1

THE SENIOR DEPUTY PRESIDENT: Good morning, can I have the appearances, please?

PN2

MS E. McCARTHY: I appear for Harris Scarfe and with me is MS P. KOLARZ, the general manager, employee relations for Harris Scarfe.

PN3

MS J. HEAGNEY: I appear on behalf of the Shop, Distributive and Allied Employees Association.

PN4

THE SENIOR DEPUTY PRESIDENT: Can I suggest, Ms Heagney, that you might wish to remain seated. It is not always comfortable standing to address a television screen.

PN5

MS HEAGNEY: Yes, thank you, your Honour.

PN6

THE SENIOR DEPUTY PRESIDENT: Very well, look, who is going to open the proceedings this morning?

PN7

MS HEAGNEY: I will, your Honour.

PN8

THE SENIOR DEPUTY PRESIDENT: Very well.

PN9

MS HEAGNEY: Thank you. This is an application under section 170LJ of the Workplace Relations Act to certify the Harris Scarfe Agreement 2002. This is a 2-year agreement which is to expire on 31 October 2004. The agreement does provide for a dispute resolution procedure which is contained in clause 24 of the agreement. We would seek to rely on the statutory declaration signed by Ian Glanville, the assistant national secretary of the SDA, and request that the Commission certify this agreement effective from today's date, 21 January 2003, and to remain in force until 31 October 2004, if it please the Commission.

PN10

THE SENIOR DEPUTY PRESIDENT: Thank you, Ms Heagney. I should advise you I have got a number of questions about the agreement, but it might be best if I hear from the employer first of all.

PN11

MS HEAGNEY: Certainly.

PN12

THE SENIOR DEPUTY PRESIDENT: Ms McCarthy.

PN13

MS McCARTHY: I agree and adopt the submissions of the SDA.

PN14

THE SENIOR DEPUTY PRESIDENT: That was simple, thank you. Now, it might be best if I address the first category of question that I have to you, Ms McCarthy, although Ms Heagney, you should feel free to jump to your feet to respond if needs be. Can I ask, first of all, as to the process whereby the agreement was reached and, in particular, whether you can explain to me how Harris Scarfes went about ensuring that unknown number of people from a non-English speaking background, that unknown number of people from an Aboriginal or Torres Strait Islander background and the unknown number of people who are disabled persons were able to participate, first of all, in the discussions that led to the agreement and, secondly, how I can be confident that the agreement was such that it was capable of being properly understood by those persons?

PN15

MS McCARTHY: It is my understanding that meetings were held with groups of staff in each store and the SDA and that all, or most staff attended and there were no reports of groups of employees who were not present at that meeting and the opportunity was given at that meeting to answer questions and also hand-outs were given to take away and to consider by the employees, and the SDA were available in the store at various times which were publicised for questions to be asked.

PN16

THE SENIOR DEPUTY PRESIDENT: Yes. I am comfortable that insofar as we are dealing with personnel who may be involved in customer service activities, it is probably highly likely that those persons have a reasonably good grasp of English. I'm particularly interested though in staff that might be undertaking work such as cleaning work, where those people may not have such a good grasp of English and may not be required to have that grasp of the English language to be able to undertake their job, and I'm interested in being reassured that we don't have groups of people in those types of categories who may not be able to understand what it is that is being put to them.

PN17

MS McCARTHY: It is my understanding that the cleaning work at Harris Scarfe, whilst mentioned in the agreement, is actually out-sourced to a contractor and, therefore, there are no Harris Scarfe staff involved in cleaning duties.

PN18

THE SENIOR DEPUTY PRESIDENT: That is in all of the stores?

PN19

MS McCARTHY: Yes, that is correct.

PN20

THE SENIOR DEPUTY PRESIDENT: Thank you. Ms Heagney, you can confirm your understanding of that position from the union's perspective?

PN21

MS HEAGNEY: Yes, I can, your Honour. That is, the SDAs understanding of the situation.

PN22

THE SENIOR DEPUTY PRESIDENT: Thank you. Now, the second category question I will address to you, Ms Heagney but again Ms McCarthy might want to jump to her feet. For the purpose of comparing the agreement with the relevant award so that I can be assured that the agreement meets the no disadvantage test, can you confirm to me the current status of the award wage rates? That is, to what extent have those wage rates been increased since the award was first made, so as to take account of safety net adjustments?

PN23

MS HEAGNEY: Your Honour, it is my understanding, when looking at the 1994 Harris Scarfe Award, that award has not had wage - I think it initially had one wage increase in 1995, that took the rate up to $418. That award is in the process of award simplification as well and has been ongoing for some time, and that award is to be made in coming months with Commissioner Raffaelli, but my understanding is that is the flat rate of $418 in the Harris Scarfe Award.

PN24

THE SENIOR DEPUTY PRESIDENT: I see, thank you. Now, Ms Heagney, the remainder of my questions go to specific provisions in the agreement. Is it appropriate that I address those to you initially, or to Ms McCarthy? Which of you would feel more comfortable scoring this batch of questions?

PN25

MS HEAGNEY: I'm not fussed, your Honour - - -

PN26

THE SENIOR DEPUTY PRESIDENT: I will address them to you then, Ms Heagney - - -

PN27

MS HEAGNEY: See how we go - - -

PN28

THE SENIOR DEPUTY PRESIDENT: - - - but again, I invite Ms McCarthy to jump to her feet to clarify those issues. I should preface my questions by saying, they are not designed to trip up or impede the process of certification of the agreement. They simply reflect my desire to clarify issues now, rather than regret at some future point that I didn't ask a question about a particular issue.

PN29

Equally, they do not invite the parties to effectively change the provisions that have been agreed upon by the employees, but they do go to the question of the intention of the parties in making the agreement. Can I take you to clause 5.9 on page 5. 5.9 references a Schedule B. Schedule B, which appears at page 41, simply notes that:

PN30

It is to be agreed between the employer and the union.

PN31

So can I take it from that, that the intention is that trainees will have their employment conditions agreed between the employer and the union, or is it between the employer and the employee?

PN32

MS HEAGNEY: At this stage, your Honour, there is no trainees under Harris Scarfe that are currently employed, that is why we are putting a deferred schedule in, in case that the company look to employ trainees and then under what scheme they will go under, whether it be retail traineeship, or a variation between the parties. I suppose, at this stage this is the clause that appeared in the last certified agreement and there has been no amendment to it. I think it is more a forewarning that there may be an issue with trainees.

PN33

THE SENIOR DEPUTY PRESIDENT: I see.

PN34

MS HEAGNEY: Whether that be in the life of the agreement or not.

PN35

THE SENIOR DEPUTY PRESIDENT: Thank you. Can I take you to page 7 to clause 6.1.3 and ask you to also refer to Schedule A. My understanding is that 6.1.3 effectively supersedes the percentages that might be set out in Schedule A, with respect to Saturday work between 6 pm and 9.30 pm, and Sunday work between 7 am and 6 pm. Is that correct?

PN36

MS HEAGNEY: Yes, that is on top of your ordinary base rate, so their penalties attach to working in those times.

PN37

THE SENIOR DEPUTY PRESIDENT: I see.

PN38

MS HEAGNEY: So you need to refer back to the schedule to get your normal base ordinary rate and then you add in these percentages, whether it be 25, or 35.50, or 60, to get their penalty and the rate that is attached on Saturday and Sunday between those times.

PN39

THE SENIOR DEPUTY PRESIDENT: I see. In that regard, if I look at Schedule A, and in particular perhaps by way of example the fourth column, which is the one headed: Additional Hours:

PN40

15 per cent loading, part-time employees only.

PN41

That has no relationship to the provisions set out in 6.1.3?

PN42

MS HEAGNEY: No, that is correct, your Honour, they relate to things like provisions for part-timers working beyond their base contracted hours.

PN43

THE SENIOR DEPUTY PRESIDENT: I see.

PN44

MS HEAGNEY: But they are not, as such, penalty rates.

PN45

THE SENIOR DEPUTY PRESIDENT: Thank you. Now, the question for Ms McCarthy in this regard. Clause 15 on page 22, establishes at 15.2 that:

PN46

It is the policy of the employer that all employees who are subject to the agreement should join the union and, accordingly, the employer undertakes to promote union membership at the point of induction by recommending that all such employees join the union.

PN47

Could you perhaps tell me about that policy and the promotion of union membership, and in that regard I should pre-empt that I have a particular interest in terms of the freedom of association provisions.

PN48

MS McCARTHY: Yes, sir, it is the policy of Harris Scarfe that they will promote the SDA as an organisation at the point after an employee has been employed and undergoing an initial training period, therefore, it is our view and our submission that this does not offend the freedom of association provisions, because the promotion of the union is some time after the employee has been employed and is merely a promotion of the benefits of joining the SDA.

PN49

THE SENIOR DEPUTY PRESIDENT: What happens if an employee does not choose to join the union?

PN50

MS McCARTHY: Then no further action is taken. It is entirely the choice of the employee.

PN51

THE SENIOR DEPUTY PRESIDENT: Thank you. Ms Heagney, can you confirm from the union's perspective that that reflects your understanding?

PN52

MS HEAGNEY: Yes, absolutely, your Honour. It is really a policy that they will hand out material that demonstrates the benefits of joining SDA, but it does not affect any freedom of association, therefore, they will have the right to be in, or not be in.

PN53

THE SENIOR DEPUTY PRESIDENT: Thank you. Can I take you then to clause 21 on page 31 of the document. Now, this redundancy provision appears to apply only in those circumstances that are nominated in 21.1, but at 21.2, it establishes a payment regime. The question that I have is, whether or not it was the intention of the parties that in the event that clause 21 became operative, the payment regime set out in clause 21.2, is intended to subsume and replace that provided for at 20.2.4?

PN54

MS McCARTHY: Yes, that was the intention of the parties.

PN55

THE SENIOR DEPUTY PRESIDENT: Is it? Does it say so anywhere in the document, or have I missed that?

PN56

MS McCARTHY: Well, it was the intention that be defining the circumstances that if those circumstances were to arise, then, as it says in 21.2, the table there would apply in addition to the notice that was prescribed earlier in clause 20.

PN57

THE SENIOR DEPUTY PRESIDENT: Yes. I guess, the point that I'm making though is that the document does not appear to establish that in those circumstances, the provisions of 20.2.4 would not apply, and what you are telling me, Ms McCarthy, is that in those special circumstances 20.2.4, would not apply?

PN58

MS McCARTHY: That is the intention.

PN59

THE SENIOR DEPUTY PRESIDENT: Yes, thank you.

PN60

MS McCARTHY: We are happy to take your suggestions.

PN61

THE SENIOR DEPUTY PRESIDENT: That is fine, I'm just trying to establish that given the potential for the agreement to be read in a number of different ways, that the parties have a shared and common intention. Ms Heagney, does that reflect your understanding of that provision?

PN62

MS HEAGNEY: Yes, definitely. It is only there to replace - in those circumstances the 16-week entitlement be apparent and they are not - if 21.1(a), (b), (c), are not there it goes back to 20 because they are - it then moves onto 21.2 in replacing 20, not to be read in conjunction except for issue of notice.

PN63

THE SENIOR DEPUTY PRESIDENT: The final two questions relate to Schedule D on page 48. Ms Heagney, can I take you to clause 3.2 and ask, whether the intention was that that line should commence with the words, "as soon as the employer", rather than "as soon as the employee"?

PN64

MS HEAGNEY: That would make more sense, Commissioner.

PN65

THE SENIOR DEPUTY PRESIDENT: If I went down to the last paragraph in clause 3.2, and again the first line, I'm wondering whether the last word in that was intended to read "employees attention" rather than the "employer's attention".

PN66

MS HEAGNEY: Yes, I believe so.

PN67

THE SENIOR DEPUTY PRESIDENT: Ms McCarthy, do those changes reflect your understanding of the intention, albeit, that there might be a typographical problem in there?

PN68

MS McCARTHY: Yes, they do, thank you, sir.

PN69

THE SENIOR DEPUTY PRESIDENT: Very well. Look, as I said to you, I won't be changing the agreement in any way, but my certificate will note the areas where the parties have clarified their collective intentions. Obviously, in the event that it is necessary ever to do so, the transcript of these proceedings will provide some assistance potential.

PN70

On the basis of the statutory declarations and the information provided to me by the parties this morning, I am satisfied that the agreement was reached through a process consistent with the Act, so that employees were able to make an informed choice to vote in favour of it. I am satisfied the agreement itself meets the requirements of the no disadvantage test. It is of a duration envisaged by the Act and it contains the necessary dispute resolution procedures.

PN71

I will certify the agreement with effect from today. The certificate will be prepared and forwarded out to the parties within the next few days, and it remains for me to congratulate the parties on reaching this agreement. In doing so, I would go so far as to make a possibly bold suggestion, that you have a period of time between now and when the agreement is next up for review. You appear to both be involved in the process of award simplification with Commissioner Raffaelli.

PN72

There exists a real potential, I think, that if you keep adding to this agreement in the future, you have already got a complicated document, and you may indeed create an even more complicated document. It might be appropriate to have a look and see how you could go about simplifying your agreement to minimise the potential for confusion. Unfortunately, I think, this agreement falls into a category with many others where, over a period of time, you have started to develop a document which has inherited some of the complexities of our traditional award arrangements, which creates the possibility for differing interpretations of the agreement.

PN73

If it is at all possible it might be appropriate to re-visit some of the provisions of the agreement to try to make sure that you dispose of those which aren't relevant and ensure that the means of expression is as simple as possible to avoid the potential for differences in the future. Nevertheless, I do congratulate you on reaching this agreement and I sincerely hope that it benefits both the employees and the employer. I adjourn the matter accordingly.

ADJOURNED INDEFINITELY [10.25am]