AG2003/5831, Transcript of Proceedings [2003] AIRCTrans 3553 (19 August 2003)

AUSCRIPT PTY LTD
ABN 76 082 664 220

Level 10, 15 Adelaide St BRISBANE Qld 4000
(PO Box 13038 George Street Post Shop Brisbane Qld 4003)
Tel:[phone] Fax:[phone]

TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER RICHARDS

AG2003/5831

APPLICATION FOR CERTIFICATION OF AGREEMENT

Application under Section 170LK of the Act
by Sungate Pty Ltd for certification of the
Sungate Distribution Centre Certified Agreement 2003

BRISBANE

10.05 AM, FRIDAY, 1 AUGUST 2003

PN1

THE COMMISSIONER: Good morning, everyone. Please take a seat. Perhaps if I could just take some appearances to start with.

PN2

MR G. BLACK: May it please the Commission, Black, G., appearing for the National Retail Association for and on behalf of Sunland Proprietary Limited - Sungate, Sungate Proprietary Limited. Commissioner, I have with me what I would describe as all the stakeholders in the LK agreement.

PN3

On my immediate right is MS TAMRA NEYLAND, the Human Resources Manager for the organisation, and then DEREK ASPINALL, who's a casual employee with the organisation and an employee rep who has filed a statutory declaration, MR PAUL MILLWARD, who is a full-time employee with the organisation, an employ rep who has also filed a statutory declaration, and MR MICHAEL LAMPERD, who's a leading hand with the organisation, is also covered by the agreement. He's an employee rep who has filed a statutory declaration. Additionally joining us is JAMIE MULLINS, the Distribution Manager for the organisation. May it please the Commission.

PN4

MR M. FURNER: If it pleases the Commission, Furner, initials M., appearing on behalf of the National Union of Workers. We shall be intervening in this matter, Commissioner.

PN5

THE COMMISSIONER: Good. Thanks, Mr Furner. Thanks, Mr Black.

PN6

MR BLACK: May it please the Commission. May I deal firstly with Mr Furner's intervention?

PN7

THE COMMISSIONER: Yes.

PN8

MR BLACK: Commissioner, the intervention is opposed on two grounds. Section 170M(3)(c) provides that:

PN9

If, before the agreement is certified -

PN10

and I paraphrase -

PN11

an organisation of employees notifies the Commission and the employer in writing that it wants to be bound by the agreement -

PN12

and I end the quote there. I draw your attention, Commissioner, to the fact that the prerequisite to being bound to the LK agreement is that the organisation notifying is an organisation registered under the Workplace Relations Act. The notification that's been provided is from the state branch of the union, which is not an organisation registered under the Workplace Relations Act.

PN13

Commissioner, the second basis for the opposition to the intervention is that Section 170M(3)(d)(ii) requires the organisation seeking leave to be bound to satisfy the Commission that its industrial interests are such that it entitles it to represent employees, and again I paraphrase. In that regard, Commissioner, it's put that a review of the eligibility rule, that is, the eligibility rule of the federal organisation, together with an understanding of the associated facts, may lead the Commission to conclude that the NUW doesn't have the ability to enrol into membership the employees covered by the proposed certified agreement.

PN14

Commissioner, the short background in this regard is that the safety net or designated award for the purpose of this certified agreement is the State Retail Industry Interim Award. Commissioner, this is an award which applies to the retail industry, and the distribution centre which is affected by the proposed CA is designated as a retail facility. It is a operation which directly supplies the retail outlets of the organisation. The significance of the proposition is that the distribution centre is not designated, may it please the Commission, as a wholesale operation.

PN15

The state branch of the NUW is not a party to the Retail Industry Interim Award. Commissioner, it is arguable when you review the eligibility rule of the federal branch of the NUW that its eligibility rule is not sufficiently broad to include employees engaged in what is essentially a retail facility, and in that regard, Commissioner, I take you to the eligibility rule of the organisation, which is rule 5, in what will be correctly described Rule 5B and then paragraph (d).

PN16

THE COMMISSIONER: Sorry, paragraph - - -

PN17

MR BLACK: (d), which is a small "d", Commissioner.

PN18

THE COMMISSIONER: Yes.

PN19

MR BLACK: Commissioner, in this regard, the rule says that:

PN20

In the State of Queensland, the union shall consist of persons who are employed in or in connection with the reception, storage and/or packing and/or handling and/or wholesale selling and/or assembling and/or delivering of goods.

PN21

And then there is in parenthesis a description of goods, and the rule goes on to say:

PN22

...but not so as to limit the generality or variety of goods to be received, stored, packed, handled, sold, assembled or delivered in wholesale warehouses, stores, yards and factories, wool, hide, skin and wool dumping stores, wharf stores, bond and bulk stores, agricultural produce and egg stores, fruit sections and stores, machinery warehouses and stores.

PN23

Commissioner, I will provide you with a copy of the rules, but the simple proposition is that the eligibility of the federal branch of the union may not be sufficient to enable to the union to enrol employees engaged in the retail facility, which is the facility operated by Sungate.

PN24

THE COMMISSIONER: And you're talking about the federal - you said the federal branch then?

PN25

MR BLACK: I'm referring to the federal rules, yes. Commissioner, to put the opposition to the intervention in perspective, I'd wind up on this basis. Firstly, it may be under Section 43 that the state branch has an ability to intervene based on decisions of the Commission that we've looked at. It may be, Commissioner, arguable whether or not the NUW federally has an eligibility rule which is sufficiently broad to embrace the employees to be covered by the proposed certified agreement, but at the end of the day what appears to be fatal to the NUWs position is that the notifying union is a state branch of the union, which is not an organisation.

PN26

Commissioner, in order to move forward expeditiously, we rely principally on that proposition, that the NUW in its state capacity is not able to be bound to the proposed certified agreement. Does the Commissioner wish me to continue now?

PN27

THE COMMISSIONER: No. I'll first of all hear Mr Furner on those matters.

PN28

MR FURNER: If it pleases the Commission, firstly, I think there's a number of incorrect statements that need to be examined and clarified, Commissioner. Firstly, the union under all circumstances has notified the company, Sungate trading as Crazy Clark's, as a organisation registered under our federal rules. I'm not certain whether the advocate is alluding to the correspondence they may have received, but certainly there has been a plethora of both correspondence and emails between the company and the union in respect to the lead-up of these negotiations and subsequently the proposed agreement.

PN29

Additionally, Commissioner, the union filed by way of a initiation of bargaining period dated 6 March in the Australian Industrial Relations Commission, and certainly provided a copy to the company on that date, in respect to our intentions to have an agreement and be bound by an agreement with Sungate. Certainly the Act in 170M(3) does make a requirement for us to demonstrate that we have members, that we are eligible to represent those members, and that we satisfy the Commission on that basis. Additionally, it goes on to determine that we need to satisfy the Commission that the organisation represents the industrial interests for the proposed agreement.

PN30

There was reference made, Commissioner, to a parent award, the Retail Award, and I understand that was the nexus of an agreement initially, bearing in mind this is the second agreement this company has had under the federal jurisdiction. The current agreement and the agreement being proposed certainly relies upon no reference in the agreement to a parent award. It is a stand-alone agreement, as I understand it, and certainly for the purposes of the statutory declaration I believe the company would be referring to the Retail Award State. Certainly, Commissioner, as the Commission would be aware, a union doesn't need to be a respondent to a federal award, and that is the case with the Retail Award State.

PN31

Surprisingly enough, Commissioner, the union represents members under an award known as the Storage Services Award 1999, and in effect the opposition of this particular company, The Warehouse, is a respondent to that award, doing exactly the same type of work as the company is conducting at its site at Eagle Farm and representing the interests of those employees under the Storage Services Award 1999.

PN32

We would argue that there is no such description as a retail warehouse, neither in our rules or any other rules of a union, and we would argue that the rules of the NUW nationally adequately represent the eligibility for our union to represent the members by the proposed agreement before you today, Commissioner. May it please the Commission.

PN33

THE COMMISSIONER: Thanks, Mr Furner. Mr Furner, the nature of your intervention: is it limited to seeking to be bound by the agreement?

PN34

MR FURNER: Commissioner, we only seek to be bound by the agreement. That's correct.

PN35

THE COMMISSIONER: You're not seeking to intervene for other purposes - - -

PN36

MR FURNER: No. No.

PN37

THE COMMISSIONER: - - - other than to be bound?

PN38

MR FURNER: No, Commissioner.

PN39

THE COMMISSIONER: Right. Mr Black, do you want to respond to Mr Furner's comments?

PN40

MR BLACK: Commissioner, I need to inform you that, as I'm instructed by Ms Neyland, that Sungate is not a respondent to the Storage Services Award. Mr Furner is referring to a facility other than the facility that is sought to be bound by the certified agreement now before you.

PN41

THE COMMISSIONER: This is the Storage Services Award 1999, is it?

PN42

MR BLACK: Yes, that's correct.

PN43

THE COMMISSIONER: Look, I think, Mr Black, before we go on, there are issues of fact here about who's respondent to what awards and other issues as well about rules and the extent of coverage. We're not going to be able to, on the basis of the submissions that have been put to me on an ad hoc basis today, to be able to reach a conclusion about these matters of fact. I'm going to have to require you all, if this is an issue that's contested - and clearly it is - that you're going to have to put more detailed submissions to me on your respective positions.

PN44

I can fully see that there's been a considerable effort to present everyone here today for purposes of certification. I can only say, however, a matter has arisen that's going to require some deliberation and we're not going to be able to proceed with certification today. I'm going to re-list the matter. In the interim, I will also issue directions about a requirement that I will place on the parties to present their positions to me formally. There are issues here that are contested about respondency which also have to be determined and which the Commission will require time and sufficient evidence to come to a view about those matters.

PN45

MR FURNER: Yes, Commissioner.

PN46

THE COMMISSIONER: Mr Black?

PN47

MR BLACK: Commissioner, could I perhaps just observe that, firstly, I don't know that Mr Furner has satisfied us that he has the one member that would be a prerequisite to him being bound. Secondly - - -

PN48

THE COMMISSIONER: Can we just go to that issue then. The documentation that he's provided is a letter by a person, and I was going to come to this to any extent. It is a matter that we can address today because we have a document before us, but we can get Mr Furner's view about this as well. For purposes of satisfying the Act as to whether or not you have a member, Mr Furner, can we go to the correspondence that you have submitted in accordance with Rule 49A, I think, from memory. The letter that you rely on for purposes of satisfying the Commission that there's a member is the letter dated 10 July 2003 by Mr Tither.

PN49

MR FURNER: That's correct, Commissioner.

PN50

THE COMMISSIONER: That's correct. Now, the wording of the letter is such that it doesn't expressly refer to his status. It refers to his status as a delegate, but what am I to presume about his wider status for purposes of satisfying the Act?

PN51

MR FURNER: Commissioner, he is, I understand, a elected delegate by the members at Crazy Clark's - sorry, at Sungate, which trades as Crazy Clark's, and certainly at the time of writing the correspondence was still a delegate - I'm unaware of any fresh election out there - and is an employee of the company, I believe still is an employee of the company.

PN52

THE COMMISSIONER: Mr Black, what do you say about that, then, regarding your objection?

PN53

MR BLACK: This is anecdotal, Commissioner, but the person is still an employee of the company, as I understand, but for the views being expressed he is not currently a member of the NUW. Whether he was a member at the time of the notification I'm not aware.

PN54

MR FURNER: Commissioner, I don't know how the company would have that information. I can produce further evidence here today on a complete membership list of employees employed by the company if you so wish.

PN55

THE COMMISSIONER: Do you have that with you today, do you?

PN56

MR FURNER: I do, Commissioner.

PN57

THE COMMISSIONER: Well, you could make that available to me for purposes of identifying the - - -

PN58

MR FURNER: For yourself, Commissioner. I have no issue with that.

PN59

THE COMMISSIONER: Mr Black, that would at least resolve one matter.

PN60

MR BLACK: Yes. Commissioner, I wonder if it is possible to deal with the other matter, and that is the status of the organisation that notified of its wish to be bound to the certified agreement. The correspondence I have is correspondence from the state branch of the union, but it's of course a requirement that the Commission be notified, and I wonder if it could be established whether the Commission has been notified by the state branch or the federal branch of the organisation.

PN61

THE COMMISSIONER: Well, the documentation I've got is signed by Mr Paul Stafford, Branch Secretary, the Queensland Branch. Mr Furner?

PN62

MR FURNER: Yes, Commissioner. It's a multi-purpose letterhead. Maybe there's some confusion from the advocate over that, but certainly we use it for all purposes. We are a dual-registered union, both in the state and federally, and it's used for all purposes of communication, whether it be the Commission or companies, but certainly the correspondence was addressed and sent on 15 July to the Registrar, and also the company on 11 July. Earlier to that, there was two passages of correspondence, one on 7 March to the Industrial Registrar and one on 4 March to the company in respect to our requirements under 170M of the Act, Commissioner.

PN63

THE COMMISSIONER: Mr Black.

PN64

MR BLACK: Commissioner, we can only take the matter on face value, and if the notification has come from the state branch, then, that's not an organisation under the Act and that might be sufficient to lead to a conclusion that the state branch, in any event, cannot be bound to the certified agreement. The view of the applicant, Commissioner, is that this matter has taken some considerable time to resolve, and I'm told that the employee reps are anxious for an outcome.

PN65

THE COMMISSIONER: I can fully understand that, Mr Black, but, notwithstanding that, there are issues that need to be determined - - -

PN66

MR BLACK: Yes.

PN67

THE COMMISSIONER: - - - for purposes of intervention. I fully appreciate that for today's purposes it will be an inconvenience for me, and particularly for yourselves, to have to adjourn, but the threshold issue is an important one and I need to determine it on the basis of adequate submissions, and there are quite clearly issues that are contested. It's just impossible for the Commission to reach a considered conclusion as to the basis of intervention until such time as it is able to consider in detail the issues of rules and the various other matters that have been presented to it on an ad hoc basis this morning. So on that basis - sorry, Mr Black.

PN68

MR BLACK: Commissioner, I was just going to seek clarification that the Commission's view then extends to both whether the notifying union is a federally-registered organisation and whether the eligibility issue is - - -

PN69

THE COMMISSIONER: It extends to all issues that have been raised this morning as to any ground you may seek for contesting the intervention on the definition of intervention that we've discussed with Mr Furner, which is really about whether or not the NUW, as it's represented in whatever form here today, whatever that might be, is capable of being an organisation that is capable of being bound to the agreement.

PN70

What I'm going to ask the parties to do is to go away in a short period of time and pull together some concise submissions to me which in their view will satisfy me that the claims they've made this morning are valid and enable me to reach a view about this matter. But I'm afraid on an ad hoc basis it's not something I'm going to rush to a conclusion on on the basis of some counter-claims and claims that are made before me, as I said, on an ad hoc basis. And I regret the inconvenience that this will cause all those who have come along here today, but I'm afraid that that's the situation that is before the Commission currently.

PN71

Depending on the outcome, I'll give some consideration to, after I've discussed with the parties, whoever they might eventually be, the terms of the agreement and whether or not the matter can be dealt with electronically, for example, instead of having to pull everyone back, even on the basis of whether or not Mr Furner and the NUW as they may be are able to be a party that's able to be bound by the agreement. Irrespective of that, I will attempt to devise a method of reducing the transaction costs for everyone involved here today as to their need to reappear.

PN72

MR BLACK: We'd be happy, Commissioner, to address the remaining issues this morning, if you wish.

PN73

THE COMMISSIONER: See, this is why I was interested to know the extent of Mr Furner's intervention, because Mr Furner is only seeking to be bound. He's not in the position of seeking to intervene as well as for purposes of countering the argument for certification, and I recall there was a decision of the Commission probably a year or two ago on whether or not a union can in effect reprobate and approbate to an agreement simultaneously. I won't go into my recollection as it was to the outcome of that, but I think it was a matter before SDP Lacy, and I have a feeling it was to do with the North West Shelf, from recollection.

PN74

So we're not dealing with that situation this morning where we have a union seeking to be bound but also seeking to lead submissions why the agreement should not be certified, so on that basis we're able, I think, Mr Furner, if you agree, to hear the matters that would enable us to get to the point of certification. Then that would just leave us the issue of the outstanding resolution as to whether or not the NUW should be bound by that agreement. Does that appear to you a fair way to proceed?

PN75

MR FURNER: Commissioner, that may be a useful exercise given that the union has indicated we are only seeking to be bound by the agreement.

PN76

THE COMMISSIONER: Yes. That would also enable me - and it's a good suggestion of Mr Black's. That would also enable me to expedite the electronic processing of the agreement without the necessity for anyone to return, and depending on how we finally settle this issue of the documentation as well as the rules and other matters that are before me about the NUW, if they were all able to be concluded, I would then deal with that electronically as well by way of separate order, if that was the conclusion that came to pass.

PN77

Now, that said, then, we will leave the issue of intervention aside and I will put out a listing and some directions for that for a quick turnaround and concise submissions. Leave that one to one side. This will enable us an opportunity just to quickly move through the normal requirements of LK and LT and LU for purposes of certification of the agreement. Then, whilst the agreement won't be certified today, nonetheless, the matter will be dealt with electronically, where there's as low a transaction cost for all parties as possible. That said, Mr Black.

PN78

MR BLACK: Thank you, Commissioner. Commissioner, let me just provide you with the sweeping statements to start with and then I'll move to a more particular justification of our position.

PN79

THE COMMISSIONER: Sorry, Mr Black. I may as well do this before you get started rather than interrupt you at the end or try and loop back to an issue that was discussed some time ago if I leave it to the end. Mr Furner did hand up to me a list of member details which is dated today's date. Now, it would appear that he's satisfied me that, as of today's date, the correspondence that he's received gives effect to the requirement of M3(d) of the Act, Section 170M(3)(d) of the Act, if I recall. That's as of today's date. But I think you're - are you contesting the issue of dates?

PN80

MR BLACK: Commissioner, just bear with me, please.

PN81

THE COMMISSIONER: Let's put it this way. Rather than explore that issue now, that's where we are; that's what's before us at today's date. If there are other issues to be raised, we'll leave those for the submissions in the context that we have referred to. Mr Black.

PN82

MR BLACK: Thank you, Commissioner. Commissioner, the broad propositions in support of the certification of the agreement go to the documentation which is before the Commission, and that documentation includes the application, copy of the proposed certified agreement, the affidavits of Ms Neyland and the three employee reps, and accompanying documents, annexures, etcetera, that attempt to satisfy the Commission's requirements in terms of process and procedure.

PN83

Commissioner, we rely on the statutory declarations. We submit that the requirements of the Act have been met and that it is open to you to exercise your discretion and certify the agreement.

PN84

By way of more particular discussion, however, may it please the Commission, could I take you to the affidavit of Ms Neyland, and I'd like to, as quickly as I can, take you through those parts of the agreement wherein it is acknowledged that there are variations between the agreement and the designated or safety net award, the Retail Award. In that regard, Commissioner, I take you to paragraph 6.4 of the affidavit, and the purpose of this dissertation, Commissioner, is to try to establish beyond any reasonable doubt that the no disadvantage test is met.

PN85

Commissioner, you'll note under the heading of Reductions a reference is made to what we call the TCR policy. Commissioner, that policy already recognises that if acceptable alternative employment is found for a redundant employee, then, an application may be made to the Commission for the severance pay prescription to be waived. In those circumstances, it's questionable whether the provision that is incorporated in the certified agreement in this regard is necessarily giving rise to a disadvantage to employees, but nevertheless we acknowledge under the policy an application would have to be made; under the certified agreement, no application would need to be made.

PN86

Commissioner, the next proposition draws your attention to the fact that the certified agreement allows for what I might call a standard working week of 43 hours. Commissioner, the rates of pay incorporated in the certified agreement are built on the rate of pay for the equivalent classification in the Retail Award, plus provision made for five hours of overtime at time and a half. Very much the typical and anticipated spread of the working of hours, working of overtime hours, Commissioner, would be to occur in that manner, that is, to invoke the penalty of time and a half as opposed to a circumstance where the five hours overtime, in any one week, might be worked on one day. Hence, the proposition is that no disadvantage arises therefore from the incorporation of the agreement of a standard 43 ordinary hours because the cost of the overtime has been specifically included in the rate.

PN87

Commissioner, there are compounded benefits that apply from the structure of the remuneration system this way. So given that the certified agreement now establishes the base rate of $602, if you like, for the full-time employee, that's the rate that is applicable for other purposes. So there are benefits arising from the compounded circumstances of that particular provision.

PN88

The next dot point deals with the fact that casuals under the underpinning award are limited to 30 hours a week, whereas under the agreement casuals can work 38 ordinary hours. Commissioner, this is a notional disadvantage. Under the Retail Award, if a casual employee worked more than 30 hours, what would eventuate is that there would need to be some discussion as to whether that employee should be classified as a casual or something else, presumably a part-time or full-time employee.

PN89

The impact of that sort of cap on hours for casuals would have been intended to lead to increased permanent employment, but given the dynamics associated with the staffing of this particular facility, if the cap of 30 hours on casual employment were to be retained, the result would not be the transfer of casual positions to permanent positions but the recruitment of additional casual positions.

PN90

Commissioner, if that occurred, then the impact on current casual employees would be adverse in that, in all probability, in order to allocate to any new casual position or positions reasonable hours, the existing hours available to the existing casual pool would be diluted. Consequently, the fact that the agreement allows casuals to work 38 hours, we assert, is a win/win situation. It means that for existing casual employees they get the opportunity to maximise their income, and there really is no adverse effects because of the fact that it is unlikely that the logical benefit of the transfer of a casual position to a full time position would occur.

PN91

THE COMMISSIONER: Sorry, Mr Black, can I just ask you to clarify something. Where you use the term "dilution" - or "diluted," sorry - are you saying that if a 30 hour cap had been retained the consequence would have been that there would have been more casuals working fewer hours? Is that what you meant? Is that what you meant by "diluted," fewer hours?

PN92

MR BLACK: Yes, that is correct, Commissioner, yes. Yes, the intent of these provisions, as you know, would be to really facilitate permanent employment, but given the nature of the operation, the dynamics of the operation and the staffing needs, the efficiency prerequisite would lead to a result that more casuals would be employed rather than transfers to permanent employment, if the cap of 30 were maintained. So we say this is a provision that benefits employees to be subject the certified agreement. It doesn't represent something that operates as a disadvantage.

PN93

THE COMMISSIONER: And as a pool of casuals, they would have been working fewer hours to some unspecified extent than the previous pool?

PN94

MR BLACK: Yes. Commissioner, the next dot point deals with the fact that the award allows a part-time employee to work between 12 and 32. The agreement allows a part-timer to work up to 40. Commissioner, we would apply a similar logic here. We would suggest that it is not appropriate to conclude that that variation, as affected by the proposed certified agreement, necessarily leads to the disadvantage of current employees, because again the ability of part-time employees to maximise their income in any given week may well be seen as a benefit and not a disadvantage. And again there are no guarantees.

PN95

There is no provision in the Retail Award that insists on quotas, if you like, or insists on employees being transferred from casual or part-time employment to permanent employment. So, absent those provisions, we don't see these changes as necessarily representing disadvantage, and, to the contrary, advantage current employees.

PN96

Commissioner, in clause 32 in the agreement there is provision for part-time employee core ordinary hours to be reduced by up to 20 per cent per calendar year under two weeks notice. There is no such provision contained in the award, at least in an explicit sense. Commissioner, however, the award doesn't contain any embargo or prohibition on an employer altering the roster of part-time employees, and the consequence of the alteration of a roster may be to see a reduction in part-time hours. So again it is arguable whether this sort of provision gives rise to a disadvantage.

PN97

In part, it may give rise to an advantage, because it specifically caps, if you like, the extent to which part-time hours may be diminished, whereas in the award there is no such cap, and I think the award provision would be correctly construed to mean that as long as two weeks notice is given then the roster can be altered, thus the hours rostered to work could be changed.

PN98

The next matter deals with the fact that the award allows full-time employees to work 8.5 hours, in general, except for late trading, late night trading day, where the hours extend to 11. But the award also provides that by agreement employees can work up to 10 ordinary hours per day. Commissioner, the certified agreement before you allows for employees to work up to 10 ordinary hours per day. Given that the instrument before you is, in fact, an agreement, there is a little difference, I think, between the proposition under an award which says by agreement people can work up to 10 hours a day and a certified agreement which has been arrived at between the parties which says the same thing.

PN99

Commissioner, the next dot point deals with the exemption provision in the award, which is the provision that says if you pay 25 per cent or more above the award rate for a shop assistant, then, that employee will be exempt from all provisions of the award except annual leave, sick leave and so on. Commissioner, the only significance here is the fact that for salary employees under the agreement, that is, for employees wherein the 25 per cent exemption rate has been invoked, under the agreement those employees do not receive the annual leave loading.

PN100

This, however, Commissioner, does not give rise to disadvantage because of the fact that, under the award, the 25 per cent exemption rate is applied to the shop assistant's rate, which is $490.40. So that would take the total weekly rate for the exempt, or what we call salaried employee, to $613 per week. Under the certified agreement, the 25 per cent is applied to the full-time rate expressed in the agreement, which is $602, and on my calculations, Commissioner, that means that the exemption rate under the agreement is effectively $752. So if you are under the award and you are an exempt employee you get 613; if you are under the certified agreement you get 752. That's a difference per week, Commissioner, of approximately 139.

PN101

The value of annual leave loading to an employee under the award, Commissioner, would not exceed $400, by my calculations. So if you are getting an annual leave loading you would get, under the award, $400 - no more than $400 each year. That, we say, is adequately offset under the certified agreement by the fact that the salary employee receives $139 per week more than the exempt employee under the award.

PN102

The next matter goes to the fact that the agreement allows for team members to take time off in lieu of penalties for working on a public holiday. There isn't any such provision in the award, may it please the Commission, but I have to say such provisions are entirely common, I would have thought, among awards of this jurisdiction and others, that is, the proposition that in lieu of receiving, say, a time and a half and addition penalty for work on a public holiday, you can elect to take the equivalent time off.

PN103

It's beauty is in the eye of the beholder. Under the award, yes, the employee must receive the cash. Under the agreement, the employee gets the time off. If you took a poll of people involved, some would say they want the cash; some would rather have the time off. So, Commissioner, in some respects there's a disadvantage; in other respects there would not be.

PN104

THE COMMISSIONER: Now, this is clause 58.

PN105

MR BLACK: Yes, that is - no, clause 75 I have in the stat dec, Commissioner.

PN106

THE COMMISSIONER: In the agreement - sorry, just looking at the agreement.

PN107

MR BLACK: Clause 58 is the provision which enables time off in lieu of overtime payments.

PN108

THE COMMISSIONER: Sorry, in the clause you were just referring to?

PN109

MR BLACK: That was clause 75, which enables, or facilitates, time off in lieu of the payment of the public holiday penalty.

PN110

THE COMMISSIONER: Oh, sorry, I'm with you. On public holidays, yes. Sorry, I am with you now.

PN111

MR BLACK: Commissioner, in the final dot point dealing with notional disadvantages, in clause 5.2 of the award, provision is made for minimum public holiday entitlements. Clause 80 of the agreement excludes salary employees from additional benefits in relation to public holidays.

PN112

Commissioner, the impact of clause 8 is that the salaried team members are entitled to the public holiday but if they were to work on the public holiday, they wouldn't receive the penalties. The proposition before you in that regard is that if you look at the margin that the salaried employee enjoys under the proposed certified agreement, which is $139 per week, that margin is sufficient to deal with the potential entitlement if the salaried team member were to work on a public holiday.

PN113

That means, in terms of the salaried employees, one has to particularly look at the impact of the removal of the annual leave loading and look at the fact that public holiday penalties are not paid in the event that a salaried team member might be required to work on a public holiday. My advice from the bar table is that - Jamie is one of them - they would not work regularly on public - - -

PN114

MR MULLINS: No.

PN115

MR BLACK: So to the extent there is a disadvantage here, Commissioner, would depend on how often the salaried team member would be required to work on public holidays. The view from the bar table, from a person who is affected, is that they don't work regularly on public holidays, so consequently we'd assert that the - - -

PN116

THE COMMISSIONER: Well, we might have the employee rep just himself tell us a little bit about that for the purposes of the no disadvantage test; at least I've got it then directly from the representative.

PN117

MR BLACK: Yes. This is not an employee rep as such.

PN118

THE COMMISSIONER: I see.

PN119

MR BLACK: This is a salaried team member who - so this - Jamie has not filed a stat dec but he's happy to answer the question, Commissioner.

PN120

THE COMMISSIONER: Good, thank you.

PN121

MR BLACK: Would you answer that.

PN122

THE COMMISSIONER: But he's one of the class of persons excluded, isn't he?

PN123

MR BLACK: He's a salaried team member under the proposed CA.

PN124

THE COMMISSIONER: Sorry, can I just get the surname again?

PN125

MR MULLINS: Mullins.

PN126

THE COMMISSIONER: Thanks, Mr Mullins. Just briefly on the extent to which you're exposed to a shortfall, if you like, as a consequence of this clause.

PN127

MR MULLINS: I have two salaried team members in the DC. Through my last five years, they have not been subject to a public holiday working. The only case that I've ever had is to be called in to work for a particular reason, to stock one of our stores, so it's very much not a regular occurrence.

PN128

THE COMMISSIONER: Good. In fact, that's something even less so. Good, okay, thanks, Mr Mullins; that's all I need for that purpose. Thanks, Mr Black.

PN129

MR BLACK: Yes, thank you, Commissioner. Commissioner, the stat dec of Ms Neyland then moves to the benefits under the agreement, and they are set out as covering the rates of pay. They refer in the next dot point, Commissioner, to the fact that the agreement provides that if the dollar increases awarded in the State wage case are greater than those provided for in the agreement, the agreement guarantees that the State wage case outcome will be matched. The stat dec points out that the casual loading under the agreement is 23.8 per cent compared to the State Commission standard of 23 per cent. The stat dec points out that employees receive a gift voucher valued at $100 under the agreement, a provision which is not replicated in the award. The stat dec then deals - - -

PN130

THE COMMISSIONER: And access to discounts, if I recall, as well, wasn't it? Is that - - -

PN131

MR BLACK: Yes, thank you, Commissioner. Yes, that's the - do you want to just tell the Commissioner what that means?

PN132

THE COMMISSIONER: Ms Neyland, yes.

PN133

MS NEYLAND: Well, Commissioner, with - yes, Ms Neyland. On the electrical items we get 10 per cent, and on normal items we get 15, so it would be really, in effect, if it's a normal item, it would be $100 plus the 15 per cent, so it's actually more than 100 in reality.

PN134

THE COMMISSIONER: Okay. Good, thank you. Ms Neyland, whilst I have you on your feet, to save you doing this again shortly, can I just take you to - it's a minor matter, but worth nonetheless resolving - 5.3, statutory declaration. There are in effect two questions at 5.3, and I suspect you may have answered the second question about some aspects of the disaggregation of the total number of employees, but on the face of it you may have overlooked giving me the total aggregation. You see, there are two questions there. The first one is, "State the total number of employees covered by the agreement." Well, I've got the disaggregation of certain groups, but that's not the sum total.

PN135

MS NEYLAND: Okay. How many have we got on the books now?

PN136

THE COMMISSIONER: If you're uncertain, it's a matter that you can put to me in the later submissions.

PN137

MS NEYLAND: Well - - -

PN138

MR BLACK: 61.

PN139

THE COMMISSIONER: Sorry, it is - - -

PN140

MR BLACK: 61, it should be.

PN141

THE COMMISSIONER: It is 61, is it?

PN142

MS NEYLAND: Because if there is - - -

PN143

MR BLACK: Does that include casuals?

PN144

MS NEYLAND: Yes, as at now, 61.

PN145

THE COMMISSIONER: Well, I'm not too sure it adds up. Well, yes - - -

PN146

MS NEYLAND: See, that was at the time - - -

PN147

THE COMMISSIONER: See, it doesn't add up, because all these are overlapping groups. Some of them are of women who are under 21 and so they can all - - -

PN148

MR BLACK: Yes.

PN149

MS NEYLAND: Yes, and if anyone is left in the interim, it might affect them.

PN150

THE COMMISSIONER: But it's a matter if you can just clarify for me and the purposes of later submissions, that would be sufficient.

PN151

MR BLACK: Thank you, Commissioner. Commissioner, we're now on the - really the second or third-last pages of Ms Neyland's statutory declaration where we referred to the operation of penalty rates under the certified agreement. Commissioner, the most significant proposition here is that whether it be by way of aberration or anomaly, the State Retail Award doesn't make provision for penalty rates for this type of retail facility. Close scrutiny of the Retail Industry Interim Award in the hours clause, may it please the Commissioner, which is in clause 4.1, will disclose that in clause 4.1.1 the weekly hours are set for all establishments which don't include a limitation in terms of hours being able to be worked on any day of the week, or any limitation on when the hours might be worked at any time during the day.

PN152

Subsequently, Commissioner, the hours clause in the Retail Award is preoccupied with prescribing conditions for the classes of retail shops which operate in Queensland by virtue of the operation of the Trading Allowable Hours Act, and I refer here to exempt shops, non-exempt shops, and independent retail shops. So insofar as the Retail Award regulates hours of work and prescribes particular penalty provisions or provisions for penalty rates, I'm referring now, Commissioner, to penalty payments for work in ordinary hours, not to overtime payments.

PN153

Those provisions are limited to the three classes of shops. They do not extend beyond that, and hence the retail distribution centre is not caught by the hours provisions or the penalty provisions, I should say, in the Retail Award, so as a consequence of that it could be argued that, for the purpose of the no disadvantage test, the company, Sungate, has no obligations to make penalty payments, but what the company has done is adopted what I would regard as a very standard payment applicable to work in ordinary hours on weekends, early hours and late night work.

PN154

So the certified agreement makes provision for a 50 per cent penalty for work in ordinary hours on a Sunday, 25 per cent penalty for work in ordinary hours on Saturdays, and a 25 per cent penalty for essentially what would be early hours and late night hours, and those details are set out in the statutory declaration, Commissioner. Commissioner, to conclude, we would submit that in terms of the satisfaction of the no disadvantage test, that those explanations and the statutory declarations before you demonstrate that the test has been satisfied.

PN155

In terms of the procedural requirements, we rely on the affidavits before you, Commissioner, and they deal with the manner in which the ballots were conducted, the extent to which employees were notified of the changes, the extent to which employees were involved in the process, etcetera. I don't propose to canvass that material now other than to respond to any questions the Commission may have.

PN156

THE COMMISSIONER: Good. Thanks, Mr Black. I do have one question and it's regarding document number TN1, which was the notice of intention to make a certified agreement.

PN157

MR BLACK: TN2, may it please the Commission?

PN158

THE COMMISSIONER: Mine is at TN1. TN2 in my body of documents is the meeting register with all the - the register with all the signatures, the original signatures on it. TN1 is the notice of intention dated 7 March 2003.

PN159

MR BLACK: Yes, we have that here, Commissioner.

PN160

THE COMMISSIONER: For the purposes of Section 170LK(4) of the Act, the Act requires that you do certain things in respect of ensuring that employees who are members of organisations are able to have an organisation entitled to represent them in negotiations of this agreement. That's Section 170LK(4) of the Act. Where your notice goes a bit further than that is that it then goes on to say:

PN161

Please advise Tamra Neyland if you wish an employee organisation to represent you.

PN162

Now, I need you to tell me, and perhaps the employee reps also to tell me, that the opportunity to be represented by an employee organisation wasn't contingent on the approach to the employer or the employer in any way consenting to that arrangement. It was indeed a right that they have irrespective of what their employer may know or think or believe or whatever role they may have, that is, the employees under the Act have that right, irrespective of the requirement to say anything to the employer.

PN163

Now, what I'm seeking to know from the employee representatives is the view that was generally understood to be the case amongst the workforce in making their decision about whether or not they wished to be represented. Quite simply, I'm saying, if I've made it more complicated than it appears - and I'm sorry for the purposes of transcript; unfortunately you can't hear everyone laughing - LK(4) of the Act simply requires that employees who are members of an organisation have an opportunity to be represented by that organisation in the negotiations for the purposes of the making of the agreement. That is their general right.

PN164

It is not in any way mitigated or affected or qualified by a requirement by the employees to have to go to their employer. Now, that's quite important, because if you're a member of a union and you want to be represented, you don't have to go to your employer to put up your hand and say, "I want to be represented." You have that right, a standing right, and you work that out with your union, and your union subsequently becomes involved in the negotiations. Now, what I need to know is, is that what was generally understood. Did people feel that they couldn't have a union unless the employer accepted that role, or played a conduit role for them? Do you see what I mean?

PN165

MR LAMPERD: Yes.

PN166

THE COMMISSIONER: Perhaps I haven't been any more successful.

PN167

MR LAMPERD: So basically - well, sorry, Michael Lamperd.

PN168

THE COMMISSIONER: Thanks, Mr Lamperd.

PN169

MR LAMPERD: So really if I could just put it into basic terms the way that we understand it - - -

PN170

THE COMMISSIONER: In better terms than I have.

PN171

MR LAMPERD: - - - are you asking whether we had the right to actually have a union represent us? Is that - - -

PN172

THE COMMISSIONER: Yes, but, more than that, that you not only had that right but you had the right to have that union represent you irrespective of you having to approach the company.

PN173

MR LAMPERD: So whether we asked them or not?

PN174

THE COMMISSIONER: Yes, or whether you understood that you could have a union to represent you in those negotiations, irrespective of any requirement to tell the company that or seek permission of the company, in a sense, because that's how these - sometimes these clauses are going to be read that, "Oh, God, now I have to go and tell the manager I want a union to represent me." Now, I want to know from the employees was it generally understood that you have that right to have a union represent you regardless of what the management thinks because this is your statutory right. Is that what people generally understood?

PN175

MR LAMPERD: Yes, I mean, basically I understood that we could have the union involved but then - - -

PN176

THE COMMISSIONER: Yes, the notice says that, but you knew you could have the union involved irrespective of whether or not - you didn't have to go to the company and ask for that. You didn't have to notify the company; you had that right generally.

PN177

MR LAMPERD: Oh, there were a lot - oh, well, I mean, we've - and the three of us have - I guess we've probably learnt a lot over the past couple of months. There were a lot of questions that we did ask that we didn't know, and also a lot of the general people on the floor, since it's not something that we come up with every day that - - -

PN178

THE COMMISSIONER: Let me reverse the question then. Is there anyone, in any of the employees whom you represent, who you feel were constrained in their option to seek to have a union represent them in these negotiations by the additional note that you had to advise Ms Neyland?

PN179

MR LAMPERD: Oh, I mean - oh, well - - -

PN180

THE COMMISSIONER: Well, I may hear from everyone separately. There is quite an array of representatives here.

PN181

MR LAMPERD: Personally, on my front, no - I will let the other guys - - -

PN182

THE COMMISSIONER: Sorry, if you can articulate a bit more. You're not aware that anyone perceived or anyone had any rights abridged by that additional sentence there. They felt they could have a union if they wanted one and it wasn't contingent on having to advise the employer of that.

PN183

MR LAMPERD: Yes, no one actually stated that to me.

PN184

THE COMMISSIONER: No one actually - sorry, what did - - -

PN185

MR LAMPERD: No one actually, well, asked or requested that to me, or I didn't have any knowledge of that.

PN186

THE COMMISSIONER: That is - sorry, if you can just clarify that again for me, because, remember, this is transcript for the purpose of assisting me to make a decision. Sorry. So what are you saying, that no one - perhaps you can fill in the gap. No one - - -

PN187

MR LAMPERD: Well, no one had actually - in relation to the question, no one had presented that question to me.

PN188

THE COMMISSIONER: Right, so on that basis you are assuming that no one had difficulty with that issue?

PN189

MR LAMPERD: Yes.

PN190

THE COMMISSIONER: Right. Sorry, if I can talk to the next one.

PN191

MR MILLWARD: Commissioner, Mr Paul Millward. Basically, I think everybody knew that if they wanted the NUW or any other union to be involved all they had to do was ask the union, not necessarily go and ask whether it be Tamra or anybody else in our HR department. I think basically everybody knew that they just had to instruct their union if they wanted them to represent them. That's my understanding.

PN192

THE COMMISSIONER: Thank you, very much.

PN193

MR ASPINALL: Derek Aspinall. Just to clarify what Paul said, basically the same thing, that we knew if there was a problem we could as them directly.

PN194

THE COMMISSIONER: You could go direct to your union?

PN195

MR ASPINALL: Yes.

PN196

THE COMMISSIONER: And that was the general understanding?

PN197

MR ASPINALL: Yes.

PN198

THE COMMISSIONER: Okay, good, thank you. I have already asked the question regarding the total number of employees. That's the only matter I wish to raise with Mr Black's submissions. The no disadvantage test has been sufficiently detailed for me to have a basis for making a decision on the operation of Section 170LT(3) of the Act regarding the no disadvantage test. Is there anything else the parties want to put to me for purposes of the certification requirements of the Act? Well, we will leave out the definition of "parties" just at the moment, Mr Furner.

PN199

Right. For today's purposes, then, I thank you for your submissions and your presence here today. I have now sufficient before me for purposes of reaching a decision regarding whether or not the Act should be certified. All that we need to do now is to be in receipt of some submissions, further written submissions, in respect of the basis on which the NUW - and I say that advisedly, whichever entity we may eventually be talking about - is seeking to be bound by the agreement.

PN200

As soon as we can resolve that issue, then I will move to the issue of certification and we will conclude all the matters, both the issue of certification and, if it should arise, the issue of the party to be bound. We will deal with both of those matters should we need to by electronic means, which will mean, in a sense, in practice, you won't need to return to the Commission for the purpose of concluding this matter, irrespective of the outcome. Yes, Mr Furner?

PN201

MR FURNER: Commissioner, I am just wondering whether there is an opportunity to consider an option in respect to today's proceedings. I'm not certain whether - I have been looking through the relevant sections in respect to 170LT - whether there is an opportunity to certify the agreement from today's date on the basis that the matter concerning the NUW to be bound by the agreement be at a later date, given that it took me by surprise at today's proceedings, given we had approached the company back in March advising them of our intentions to be bound from that date and come along here today and have our members, and certainly these people that may not be members of a union, disadvantaged as a result of the certification agreement.

PN202

THE COMMISSIONER: If that's your position, I have a different light on things. I thought you may have wanted to - again, not that your intervention was going to in any way be critical of the grounds of certification because you're coming in via being a party to - you're approbating, if you like, in respect of the agreement. I will hear from Mr Black on that issue, and I suspect I know what the conclusion will be, but go ahead.

PN203

MR BLACK: Yes, Commissioner, we'd support that proposition. The other matter I wanted to canvass with the Commission before the matter closed was that there are essentially three issues we're talking about in terms of the status of the NUW. One is whether they have a member, the second is whether it is a state or federal organisation, and the third issue is eligibility. Commissioner, it may be that after these proceedings we could try to narrow the issues that - - -

PN204

THE COMMISSIONER: Well, the parties are at liberty to agree to a different construction of the questions or a more limited range of questions.

PN205

MR BLACK: Thank you.

PN206

THE COMMISSIONER: And I will leave that to the parties. The only issue for me will be that I expect that the matters that are dealt with eventually by way of written submissions will be common matters, that is, the questions that come in that you'll be answering will be agreed questions between you. I won't look behind why there aren't other questions there. I will just assume you have come to an agreement, reached agreement, on outstanding issues, so as long as you just have a common set of questions that you are addressing to me in those written submissions. It may come to pass there is only one - - -

PN207

MR BLACK: Yes, could well be, Commissioner.

PN208

THE COMMISSIONER: - - - or two and an abridged second part or something. I will leave it to yourselves, but if you can just ensure the headings that you use are - there is a consensus about those and then I will be able to assume that you have come to an agreement.

PN209

MR BLACK: Thank you, Commissioner. Based on that, we would certainly support any proposition that the matter be resolved.

PN210

THE COMMISSIONER: Good, thank you, Mr Black, and, Mr Furner, can I thank you for your co-operation in this matter then.

PN211

The agreement that is sought to be certified is the Sungate Distribution Centre Certified Agreement. In the Commission's view, with the absence of one minor matter regarding the statutory declaration which will be satisfied by way of the further submissions, the Commission is satisfied that all the requirements of the Act and the Rules have been met in relation to this agreement and will certify the agreement with effect from today's date pursuant to Section 170LT(10) of the Act for three years from the date of certification, which again is today, 1 August 2003. On the basis, we are adjourned. Thank you, everyone.

ADJOURNED INDEFINITELY [11.15am]