AG2003/2806, Transcript of Proceedings [2003] AIRCTrans 3554 (19 August 2003)

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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

DEPUTY PRESIDENT HAMPTON

AG2003/2806
AG2003/6083
AG2003/6104

APPLICATIONS FOR CERTIFICATION
OF AGREEMENTS

Application under section 170LK of the Act
by Hutt Nominees Pty Limited for certification
of the Hutt Nominees Pty Limited
Certified Agreement 2003

Application under section 170LK of the Act
by Vissub Pty Limited for certification of
the Vissub Agreement 2003

Application under section 170LK of the Act
by Four Camels Pty Limited for certification
of the Four Camels Pty Limited
Certified Agreement 2003

ADELAIDE

2.15 PM, FRIDAY, 1 AUGUST 2003

PN1

MR B. THOMPSON: I appear for the employees. With me today, your Honour, is employee representatives for each company and employers from each company so, at the moment they are disbursed randomly. If you would like to rearrange to deal with each one that can be done quite easily.

PN2

THE DEPUTY PRESIDENT: All right, Mr Thompson, perhaps I should indicate that - I will take it that a lot of your submissions presumably will be common, obviously, I need to hear you in respect of each particular process, but a lot of your submissions I take it, will be common.

PN3

There are a number of issues that I need to raise with you, but they will also, in general terms, be common, although there are a number of particular aspects that arise under some of the agreements. In that context I propose just to deal with it in the order that they have been listed, but obviously it will be a single transcript. I will hear them concurrently, so you should feel free to refer to your earlier submissions.

PN4

MR THOMPSON: Certainly.

PN5

THE DEPUTY PRESIDENT: In terms of the contributions from the employee representatives perhaps as we deal with each agreement I will get them to identify themselves and take it from there as we will deal with one agreement at a time.

PN6

MR THOMPSON: Sounds good. Thanks very much.

PN7

THE DEPUTY PRESIDENT: Mr Thompson, perhaps we will deal with Hutt Nominees. I think that is the matter listed first.

PN8

MR THOMPSON: That is correct.

PN9

THE DEPUTY PRESIDENT: Yes.

PN10

MR THOMPSON: Thanks, your Honour. We seek to have this agreement which was developed under section 170LK of the Workplace Relations Act that is known as the Hutt Nominees Proprietary Limited Certified Agreement 2003 certified pursuant to section 170LT of the Act. We would submit that the agreement complies with all the requirements of the Act in that it provides a net advantage to employees.

PN11

It was arrived at with the full understanding and agreement of a valid majority of employees. All employees subject to the agreement received valid notice of the agreement being made, but at all times stipulated by the Act, that all time frames stipulated by the Act were complied with and that it contains a dispute settlement clause. If it pleases the Commission I can give a brief background to the development of the agreement.

PN12

THE DEPUTY PRESIDENT: Thank you.

PN13

MR THOMPSON: Your Honour, this agreement was - has been in the making for some time, due to the nature of the workplace, that being a Subway franchise. The employer has, for a number of years now, used Australian Workplace Agreements as his preferred method of employment. These have worked very well but have reached the - the company has reached a size where, for administrative reasons, it becomes more efficient to use a single certified agreement.

PN14

It also produces a degree of rationalisation of employee terms and entitlements such as wages, which can otherwise become a little skewed under the AWA system. Therefore the employer has decided to seek to have a certified agreement made with his employees.

PN15

THE DEPUTY PRESIDENT: Just in that context, Mr Thompson, I would indicate that because the existing AWA is a form part of the context in which the agreements were negotiated I would want to see either a sample - I take it from what you have just said that there are differences. There may be different life cycles, but if there is the same AWA - a copy of a typical AWA - or if there are a variety of AWAs, a representative sample of those agreements.

PN16

MR THOMPSON: Sure. I don't have a sample AWA at the Commission today, but I would be happy to provide one in due course. As a description of the terms of the AWA they are, on almost all terms, identical to the certified agreement in that the wage structure and the general application of the AWA do operate in the same way as the certified agreement - proposed certified agreement. If it pleases the Commission I will provide that following the hearing.

PN17

THE DEPUTY PRESIDENT: Yes, that is fine, thank you.

PN18

MR THOMPSON: If I provide a single AWA as an example for all employers, because that applies typically to all of the employers who have been using AWA as their preferred - - -

PN19

THE DEPUTY PRESIDENT: Do I take it the AWA you will supply will be typical of the AWAs that are currently applicable to all 3 applications?

PN20

MR THOMPSON: That is correct.

PN21

THE DEPUTY PRESIDENT: To employees that are subject to all 3 applications?

PN22

MR THOMPSON: That is correct, your Honour.

PN23

THE DEPUTY PRESIDENT: All right, very well.

PN24

MR THOMPSON: Sir, having used AWA successfully for a number of years, the employees are not only familiar with the terms of the AWA but therefore largely familiar with the terms of - almost all the terms of the proposed certified agreement which is helpful in this matter in determining their understanding of the proposed agreements. The employees received notice of intent in writing which included the required wording from section 170LK(4) of the Act. They received that notice on 16 April 2003. Subsequent meetings were held with employees on 27 April and 28 April to further explain the proposed certified agreement and to again give further notice of the intention to hold secret ballots with employees on 11 and 12 May.

PN25

The total time lapse between the giving of the notice of intent and the holding of the secret ballots was therefore 25 days which is obviously well in excess of the 14 day minimum requirement. At the meetings on 11 and 12 May employees were asked to cast secret ballots which were pieces of - obviously pieces of paper with - that were issued to all of the employees and asked - then deposited with - in a box I presume?

PN26

MR ..........: Yes.

PN27

MR THOMPSON: In a box, privately and discreetly so that there was no duress on employees' voting intentions. The outcome of the ballot was that a total of 41 votes were cast from a total employee number of 70 and 40 votes were cast in favour of the agreement. So, about 98 per cent majority approval of the valid votes and a total of 57 per cent of employees were in agreement - of all employees were in agreement - but pursuant to the Act I would say that that forms a valid majority of roughly 98 per cent.

PN28

THE DEPUTY PRESIDENT: Is there - I don't think in relation to this application there was a written summary of that valid outcome.

PN29

MR THOMPSON: I think on page - the statutory declaration isn't numbered, but - section 5.1 of the statutory declaration explained that process and subsection 4 of that point in the statutory declaration explained the outcome of the - - -

PN30

THE DEPUTY PRESIDENT: I see, yes.

PN31

MR THOMPSON: - - - of the ballot. Subsequent to the ballots being held, the statutory declaration was put together and lodged with the Commission within 21 days. Again, the statutory time period was complied with.

PN32

THE DEPUTY PRESIDENT: Mr Thompson, one of the issues that arises is whether or not, given that there were 41 votes cast as against 56 eligible, whether all employees were given an adequate opportunity to participate in the ballot. Perhaps you might explain your instructions about how that was organised.

PN33

MR THOMPSON: Certainly. Your honour, the employees were informed that a - that two meetings would be held whereby they could cast a vote on the agreement and that although neither of those meetings was compulsory to attend, they were informed that they - their votes obviously would be important and they were encouraged to attend. The reason that there were 2 meetings held was that it would allow the employees of both stores to attend - of all stores to attend - because of the changes in time and I believe that the timing of the actual meetings was also made in order to be hours that were reasonable to employees' ability to attend.

PN34

I would presume that 40 per cent - 48 of the 70, or 41 out of 70 employees - is a fairly reasonable response to that - to that voting process and certainly those that did, or were able to attend, showed a very, very clear majority approval.

PN35

THE DEPUTY PRESIDENT: They represent a valid majority?

PN36

MR THOMPSON: Yes, they do.

PN37

THE DEPUTY PRESIDENT: Thank you.

PN38

MR THOMPSON: Thank you Commissioner, sorry, your Honour. If I may move on to the agreements. Compliance with the no disadvantage test in section 170XA of the Act and the way in which this agreements acts to ensure that that is the case, I believe from previous hearings, your Honour, you may be somewhat familiar with the way in which this agreement operates and that is that the employer seeks to, for operational efficiency, create a single hourly rate that applies to ordinary hours.

PN39

Those ordinary hours are wider than the ordinary hours under the award, but the ordinary hours and the single hourly rate under the agreement include provision for penalties, overtime and in the case of part-time employees penalties, sick leave, annual leave, that would otherwise have accrued under the Act, so that employees working ordinary hours under the agreement are not disadvantaged. If you would like me to explain how that operates and give you some assurances that those rates are compliant?

PN40

THE DEPUTY PRESIDENT: Yes.

PN41

MR THOMPSON: If I just - you could turn to attachment 2 which is the spreadsheet.

PN42

THE DEPUTY PRESIDENT: Yes, I have it.

PN43

MR THOMPSON: On the second page of the spreadsheet, your Honour, is a, on the left-hand side, if we use that example, there is PTL1 in the top left-hand corner. That is the part-time level 1 rate. You will see that the Saturdays and Sundays at the top of those two boxes. There are 20 Saturdays and 20 Sundays which is - they are included in the ordinary hours. The rate paid under the term - the rate of the certified agreement - for all - if somebody was just working 38 ordinary hours a week, is $29,086 thereabouts during the course of the year, whereas under the award an employee just working ordinary hours would earn $23,000, so significantly less.

PN44

Then to ensure that all of the penalties from the award are fully inclusive within that hourly rate, we have taken - we have shown the public holiday loading, the box below the top, the annual leave, the annual leave loading, the sick leave, bereavement leave, afternoon shift allowance, meals, Saturdays and Sundays and the total of all of the award penalties and allowances including annual leave and sick leave for a part-timer comes to $29,486 which is $120 less than the employee under the certified agreement.

PN45

THE DEPUTY PRESIDENT: Mr Thompson, there is an issue that arises about the annual leave and sick leave for the part-time employees which in part relates to the analysis that you have just presented. I am happy to raise it with you now, or if you prefer I will let you run through the balance of the agreement and then raise that with you at the conclusion?

PN46

MR THOMPSON: I would be happy to deal with it now, your Honour.

PN47

THE DEPUTY PRESIDENT: Very well. It seems to me that - and you will appreciate this from previous matters that have been before this arm of the Commission - one of the very serious issues that arises here is the fact that there is no apparently demonstrable annual leave and sick leave for the part-time employees. In that context there are some provisions in this agreement which effectively allow for unpaid leave to be taken on the basis that the rate is already loaded to buy-out, to use an expression, to buy-out the leave that would otherwise be payable. There are I think, however, a number of aspects that arise in that context.

PN48

One is the need to be assured that the leave is actually able to be taken, given that there are various decisions of this Commission which indicate that leave isn't just about the money, it is about the capacity to take - to have permission to take leave in the true sense of that word and still be in accordance with the contract of employment.

PN49

The second matter that arises is in terms of the monetary impact of the salary package, or the loaded rate that is applied. Based on that spreadsheet that you were just speaking about, if in that year the part-time employee level 1 actually took 4 weeks leave and didn't get paid for it, they would be less than the award on this comparison because this assumes that they would work, I take it, those hours over the 52 weeks of the year, whereas of course in relation to the award comparison, 4 weeks of that would be annual leave which they would be paid for.

PN50

MR THOMPSON: I take your point, your Honour, and I am not sure that without doing some more detailed analysis whether I could say that that is correct. Under that spreadsheet the 38 hours per week is over a 52 week period which gives them that amount of annual income.

PN51

THE DEPUTY PRESIDENT: Yes.

PN52

MR THOMPSON: That includes the 4 weeks annual leave within those rates. If they were taking annual leave they would be working less than 52 weeks. They would still be paid on a pro-rata basis the annual leave, so now it is a pro-rata amount.

PN53

THE DEPUTY PRESIDENT: But surely it is built into the rate though, isn't it?

PN54

MR THOMPSON: It is.

PN55

THE DEPUTY PRESIDENT: In which case they only get paid when they work?

PN56

MR THOMPSON: So that the rate includes a pro-rata amount for annual leave, as they work, rather than as leave is taken. So, if somebody is working an entire 52 week year they are being paid for 52 - for 4 weeks holiday within that year.

PN57

THE DEPUTY PRESIDENT: Well, they are being paid the same amount of money, but my point is that on one hand - you will appreciate from other matters that I have had - that I am concerned about the lack of the ability to take the leave on one hand, but I am also concerned about whether the agreement meets the no disadvantage test even if applied in the way that is set out here, because in order to actually benefit from that leave which they have been paid for in advance, they take a period of unpaid leave and that actually reduces their income in comparison with the award.

PN58

MR THOMPSON: Without reducing - without going back and calculating exactly how much if you take 2 weeks' or 4 weeks' leave out of that, then I would have to look at how much it actually did reduce those rates by. I can't be sure exactly how much - - -

PN59

THE DEPUTY PRESIDENT: Well, look I understand that but you appreciate that there's a relatively narrow margin in the scheme of things, and I should also say I do understand that these figures have been done on the basis that in a sense that the worst assumptions have been made.

PN60

MR THOMPSON: That is correct.

PN61

THE DEPUTY PRESIDENT: I understand that completely. In other words, you have assumed that it will be 20 Saturdays and 20 Sundays and all of the - - -

PN62

MR THOMPSON: And that they will be taking - - -

PN63

THE DEPUTY PRESIDENT: - - - allowable public holidays.

PN64

MR THOMPSON: - - - 10 days' sick leave, that they will be taking bereavement leave, that they will be taking every single penalty under - that is available under the award which would otherwise most ordinarily not be taken. So that everything - a worst case scenario has been made to ensure that the rate is loaded to the maximum amount possible as compared to the award.

PN65

THE DEPUTY PRESIDENT: Yes.

PN66

MR THOMPSON: I guess the other way that we've looked at this is having the rates in the agreement reflect the rates that would otherwise be approved under the same no disadvantage test for AWAs using a no disadvantage test calculator that shows that on balance the loaded rate, including those annual leaves, does not produce a disadvantage. So I would have to - if I was looking at that I would have to understand exactly how the Office of the Employment Advocate's no disadvantage test calculator also determines that there's no disadvantage when you are cashing out annual leave and sick leave.

PN67

THE DEPUTY PRESIDENT: Look I think in that context and out of fairness to you, given that you will have to take some time to supply, you know, a standard AWA or a typical AWA. Perhaps you might also in that context make some further submissions about this general area - on the one hand the capacity to ensure that employees who, under the safety net award, are entitled to annual leave and sick leave, that is, both the payment for it and the actual leave. So that is an issue, and you will appreciate that perhaps the best reference for that is the Full Bench in Just Cuts. I don't know whether you are familiar with that decision.

PN68

MR THOMPSON: I am familiar with that decision, your Honour. Also just another point that obviously has an impact is again we are talking about part-time employees.

PN69

THE DEPUTY PRESIDENT: Yes.

PN70

MR THOMPSON: Those part-time employees, if they are working at any less than these rates, would only be entitled - would be entitled to exactly the same amount. Although they would only be working 48 weeks of the year they would be receiving the pro rata amount. Even if they were working less than 38 hours they wouldn't be receiving their entire holiday allowance. They would have less than 4 weeks' annual leave. It works exactly the same way within this agreement. If they are working less than the entire amount then they are paying less than the entire annual leave allowance. So I cannot see how on a pro rata basis for part-time employees it works any differently at all to the award in that reduced hours, reduced entitlement to annual leave.

PN71

THE DEPUTY PRESIDENT: Yes, but except that in this comparison both the certified agreement column and the award column would be reduced proportionately if there were less hours.

PN72

MR THOMPSON: And there would still be no disadvantage.

PN73

THE DEPUTY PRESIDENT: All right. Well, I think that is what I need to hear you on, as to why you say that is the case.

PN74

MR THOMPSON: Under the award if a person is working as a part-time employee and is working less than 38 hours per week then they are not entitled to the full annual leave amount.

PN75

THE DEPUTY PRESIDENT: No. Quite so.

PN76

MR THOMPSON: Likewise, if they are under the certified agreement and, like you accurately say, if they are working less than 52 weeks then they are going to get less than that amount so - - -

PN77

THE DEPUTY PRESIDENT: Yes, but the part-time employee under the award gets paid when they are on annual leave, whereas in order to get any annual leave here they have to have a period of unpaid leave, in which case they reduce their earnings under the agreement. It is the same issue whether you are a full-time or a part-time but of course only in this agreement does the buy-out apply to the part-time employees.

PN78

MR THOMPSON: I hear you, your Honour, and I will have to take another look at it but I don't see how there is any detriment to the employee as opposed to the award. If they are working less than 38 hours a week then their entitlements - to me, I can't see any difference in what they will actually be taking home.

PN79

THE DEPUTY PRESIDENT: Well, I must have missed - I thought earlier you were conceding that they would in fact lose some - theoretically, some benefit under the agreement because they would have to take time off but that there were other elements, such as the fact that employees don't generally work the worst case scenario which is outlined in this spreadsheet, but if that is not the case then I think you do need to think about the issue that I've raised, in particular how that works, and if that means that you might want to touch base with the Employment Advocate and find out how their no disadvantage calculator works, if that is relevant - - -

PN80

MR THOMPSON: Well, I do know how the no disadvantage test calculator works. It works in exactly the same way as this spreadsheet works in that annual leave is accrued on a pro rata basis as it is under the award and that if part-timers are working under a certified agreement on a pro rata basis they are accruing annual leave on a pro rata basis. The award shows that if - sorry, the comparison shows that on the worst case scenario if they work all of the year they will get - they will not be disadvantaged. That flows back. If they work less than full time then the amount of annual leave accrued - so the column - to take it to a numerical amount, if the column in part 2 of this example we've looked at for annual leave and annual leave loading, if somebody works less than 52 weeks a year at 38 hours a week that $1807 and $316 for loading will be scaled rate.

PN81

THE DEPUTY PRESIDENT: Quite so, but I think - - -

PN82

MR THOMPSON: Exactly the same amount so - - -

PN83

THE DEPUTY PRESIDENT: But, with respect, I think the point you are missing is that in order for them to have leave under the certified agreement they actually have to take unpaid leave, in which case if you are dealing with an annual calculation there will be a difference. That must follow. It is only then a question of whether in the scheme of things that is a net disadvantage. I mean how else - in order to actually have any leave they must take time off. By definition, it is unpaid.

PN84

MR THOMPSON: That is right, and that is why we are only talking about part-timers and the part-timers' ability to work less than 38 hours while still being paid a pro rata amount for annual leave. Now, no-one, I would expect - I don't think any part-timers are going to work 52 weeks voluntarily. They are going to be working a lot less than that. Therefore they are not going to be disadvantaged. They are not going to be pushed in to taking large amounts of leave and therefore receiving any less than what they would under the award. I take your point, your Honour, and if I haven't been able to address it then maybe I can address it with some notice.

PN85

THE DEPUTY PRESIDENT: Well, perhaps I will leave that with you and you can supply us supplementary submissions in due course.

PN86

MR THOMPSON: You also made the point just earlier on, your Honour, that whether the employees are entitled to reasonable rests and respite given the terms of this part-time arrangement and the fact that their annual leave is being cashed out. I draw your attention to clause 20.3 which provides that:

PN87

Part-time employees will be encouraged to take up to 2 weeks' unpaid annual leave and will not be restricted from taking up to 4 weeks or thereabouts under the agreement.

PN88

This is intended to ensure that part-time employees would be given an adequate amount of rest and respite from their duties with the employer.

PN89

THE DEPUTY PRESIDENT: You appreciate that is a two-edged sword based on the discussion we've just had in the sense that I think that there's good reason why employees should actually take that time off as part-time employees but it is a question of the cost of that.

PN90

MR THOMPSON: Again on a pro rata basis I fail to see how it has a negative impact. On a pro rata basis they will not be receiving any less than they would as a part-time employee under the award.

PN91

THE DEPUTY PRESIDENT: Except they take unpaid leave, which must impact on the annual earnings that are received. That is the point you are going to come back to me on I think.

PN92

MR THOMPSON: Yes. That, your Honour, deals with some of the points that I would deal with in relation to the no disadvantage test.

PN93

THE DEPUTY PRESIDENT: Yes.

PN94

MR THOMPSON: If there's any others that you would like to make I am happy to address them now.

PN95

THE DEPUTY PRESIDENT: All right, very well. I think the other issue that arises is that of course the safety net against which the Commission is required to determine this is a moving feast in that it has only recently been adjusted for the state wage case decision.

PN96

MR THOMPSON: I'm not sure that the South Australian award has been adjusted yet.

PN97

THE DEPUTY PRESIDENT: Yes. Well, my understanding is that it was adjusted on 23 July so - - -

PN98

MR THOMPSON: I will have to look at that. If the State award has been adjusted then I would propose to adjust the rate proportionately to ensure the same advantage under the certified agreement, and I would propose to do this by providing section 170MD undertakings or potentially providing an amendment pursuant to section 111(1)(p) of the Act.

PN99

THE DEPUTY PRESIDENT: I think for the moment what I will note is that intention. Obviously I will need to consider the other issues that I've raised with you as well, and if that does involve a revised instrument it may be best to deal with both of those through another process under the Act. You will appreciate that recent Full Bench decisions have taken a reasonably narrow view of the capacity of the Commission to allow amendments to a proposed certified agreement after it has been voted on, even if that is to address concerns of the Commission.

PN100

MR THOMPSON: Certainly, and even - I understand under section 170MD we can follow the standard procedure for variance, which would involve a majority approval if necessary.

PN101

THE DEPUTY PRESIDENT: And that was what I was referring to.

PN102

MR THOMPSON: Yes.

PN103

THE DEPUTY PRESIDENT: Actually going back through the process, but what I'm indicating is that, look, I will note the intention there. I think that is a reasonable intention. What I will do though is after I have considered the AWAs that you will put to me, or the AWA you will put to me, in any further submissions about this other issue I will then give you a view about the whole matter and then you and your client will be a position to make an informed judgment about what follows.

PN104

MR THOMPSON: Yes.

PN105

THE DEPUTY PRESIDENT: Just excuse me for a moment. Look, on a related point I do note that in the Hutt Nominees Agreement which is the one we are dealing with the review mechanism under 13.3 for the wages indicates a review but without a commitment to an outcome.

PN106

MR THOMPSON: This is the same - this clause that in point 3 the review method is the same review procedure, and I have included it for this reason that in a previous hearing before your Honour, this issue was raised and it was agreed that this undertaking was suitable to satisfy the Commission as to the procedure for reviewing rates - - -

PN107

THE DEPUTY PRESIDENT: Well, that is - - -

PN108

MR THOMPSON: - - - and subsequently inserted pursuant to section 170MD.

PN109

THE DEPUTY PRESIDENT: Yes, well, that is quite true. But there are two things I mean to say about that. One is that has not occurred.

PN110

MR THOMPSON: That is - - -

PN111

THE DEPUTY PRESIDENT: And secondly I think more recent Full Bench decisions may cast a different view about whether that is in fact an appropriate way of dealing with the substantive amendment to an agreement. So again if you have views on that I would be interested to hear them.

PN112

MR THOMPSON: Yes, your Honour.

PN113

THE DEPUTY PRESIDENT: All right. I think that is all I had for you on that one.

PN114

MR THOMPSON: Okay.

PN115

THE DEPUTY PRESIDENT: Perhaps as a matter of convenience then I understand - is it Mr McLean and Mr Filby?

PN116

MR FILBY: Yes, sir.

PN117

THE DEPUTY PRESIDENT: Yes, perhaps you might - you can stay seated if you like.

PN118

MR FILBY: Stay seated?

PN119

THE DEPUTY PRESIDENT: That is fine, yes. Perhaps you might just explain your role on anything you wanted to say either about the process or about the proposed agreement.

PN120

MR HOOD: Well, from what I understand it is very similar to the Workplace Agreement, the certified agreement which has been offered to us. I understand there has been a slight change in the way the paperwork would be adjusted. I believe that even by the individual lodgements that we just - - -

PN121

THE DEPUTY PRESIDENT: Right, so it is based on the AWA as far as you and your colleague is concerned?

PN122

MR HOOD: Yes, pretty - from what I understand of the wording the similarities were very, very, very close. I mean if there's any minor ones it is beyond my comprehension. As to what was brought up here I never even contemplated it to be honest. But it seems to be I believed it to be slightly better than the AWA when I looked at it and went through it and reviewed it and discussed it with my fellow staff members.

PN123

THE DEPUTY PRESIDENT: And I take it you accept what was said earlier about the fact that everyone had an opportunity to vote if they wished to?

PN124

MR HOOD: Yes. Yes, it was totally voluntarily and it was done as a blind ballot so no one knew who voted what. So - and yes, it was totally fair in that manner.

PN125

THE DEPUTY PRESIDENT: Right. One of the things I do need to confirm is that the agreement that is before the Commission, that is exactly the agreement that you and your colleagues had in your possession when it was voted on?

PN126

MR HOOD: Yes, sir.

PN127

THE DEPUTY PRESIDENT: Because I think that you have signed this? You both - - -

PN128

MR HOOD: I believe I have, your Honour.

PN129

THE DEPUTY PRESIDENT: In fact both signed this agreement.

PN130

MR HOOD: Yes, I have.

PN131

THE DEPUTY PRESIDENT: And that was the agreement that you were considering - - -

PN132

MR HOOD: Yes, sir.

PN133

THE DEPUTY PRESIDENT: - - - when the notice was given to you that the process was unavailable?

PN134

MR HOOD: Yes, I was in charge of dealing with that with the staff members for all stores and that is the exact one I presented to them, your Honour.

PN135

THE DEPUTY PRESIDENT: All right, good. All right and is it - Mr Filby? Perhaps you might just come forward so you can be picked up. What would you like to say about either the process or the agreement?

PN136

MR FILBY: Yes, everything has been done pretty much as ..... said. It has been blind ballot. No one knew who voted for what, yes.

PN137

THE DEPUTY PRESIDENT: All right.

PN138

MR FILBY: Yes, it has all been done above-board and all that.

PN139

THE DEPUTY PRESIDENT: Okay. And again you confirmed to me that the agreement that I have got is the one that you were given notice of 14 days prior to?

PN140

MR FILBY: Yes, yes.

PN141

THE DEPUTY PRESIDENT: All right. Thank you.

PN142

MR FILBY: Thank you, your Honour.

PN143

THE DEPUTY PRESIDENT: All right, Mr Thompson, I think in that context what I would do is I will formally reserve a decision. I will await that material and any further submissions you wish to make.

PN144

MR THOMPSON: Thank you, your Honour. Just to confirm, you are seeking a copy of a similarly approved Australian Workplace Agreement?

PN145

THE DEPUTY PRESIDENT: Yes, in this workplace.

PN146

MR THOMPSON: In this workplace.

PN147

THE DEPUTY PRESIDENT: Yes.

PN148

MR THOMPSON: And am I to understand that the AWA has any bearing on the no disadvantage test procedures?

PN149

THE DEPUTY PRESIDENT: Well, it is not particularly. It just sets the context in which employees have made a judgment about the agreement so it is - - -

PN150

MR THOMPSON: If it was to come to a public interest argument?

PN151

THE DEPUTY PRESIDENT: Well, it also goes to the genuineness of the agreement I think so you just need to understand that to see first-hand what you have indicated to me about the status of that.

PN152

MR THOMPSON: Yes, your Honour.

PN153

THE DEPUTY PRESIDENT: And of course the submissions deal with the no disadvantage test in the context of the number of issues that I have raised with you.

PN154

MR THOMPSON: Yes, your Honour, yes.

PN155

THE DEPUTY PRESIDENT: Right, good. Thank you. All right, well, we will now deal with the second application. I think the Vissub Certified Agreement.

PN156

MR THOMPSON: Thank you, your Honour. Would you like me to - I will introduce the agreement again. We seek to have this agreement which is developed under section 170 of the LK - section 170LK of the Workplace Relations Act and is known as the Vissub Pty Limited Certified Agreement 2003 certified pursuant to section 170LT of the Act. We would submit that the agreement complies with all the requirements of the Act in that it provides a net advantage to employees. It was arrived at with a full understanding and agreement of a valid majority of employees.

PN157

All employees subject to the agreement received valid notice of the agreement being made that all time frames stipulated by the Act were complied with and that it complies in that it contains a dispute settlement clause. If it pleases the Commission I can give a brief background on the development of this agreement. Also I will add that it is very similar to the manner of development of the previous application.

PN158

THE DEPUTY PRESIDENT: Yes, in which case I think I only need to know if there are any differences otherwise I will take your explanation as read.

PN159

MR THOMPSON: Well, apart from dates, periods of notice etcetera and the majority approval, number of employees that voted.

PN160

THE DEPUTY PRESIDENT: Yes, and that is set out in the statutory declaration.

PN161

MR THOMPSON: Which is all in the statutory declaration. A slightly smaller number of employees but an equally impressive margin of approval I guess.

PN162

THE DEPUTY PRESIDENT: And in relation to the agreement itself I take it that you rely on the submissions you have just made in general terms?

PN163

MR THOMPSON: In general terms I do.

PN164

THE DEPUTY PRESIDENT: Yes.

PN165

MR THOMPSON: Yes.

PN166

THE DEPUTY PRESIDENT: And perhaps in that context I should also indicate that the perusal of the AWA is relevant to this as well and I understand that AWA will be typical of this workplace as well.

PN167

MR THOMPSON: Yes. One will be provided for the Commission.

PN168

THE DEPUTY PRESIDENT: Yes.

PN169

MR THOMPSON: In relation to this employer.

PN170

THE DEPUTY PRESIDENT: And in relation to the issues that I will raise with you again I propose to permit you to confirm your position.

PN171

MR THOMPSON: Yes.

PN172

THE DEPUTY PRESIDENT: In writing in respect of the issues that I have raised about the annual leave and sick leave and that the no disadvantage test more generally.

PN173

MR THOMPSON: Yes.

PN174

THE DEPUTY PRESIDENT: Perhaps I should note that in - no, that is all I need to say. Is there anything further you wish to say about the certified agreement at this stage?

PN175

MR THOMPSON: No, nothing unless there are any other issues that you have, your Honour. If there is anything you wish me to address in particular then I would be happy to but otherwise I think that if you agree that it complies with the procedures and have no questions about the procedures and that the only issues outstanding are those in relation to the XA - 170XA test, then I will deal with those subsequently by further representation.

PN176

THE DEPUTY PRESIDENT: All right. Look I have just realised that there was one other matter that I wanted to raise on the Hutt Nominees. I can do that now, or I can do it at the end. I don't want to throw you around too much.

PN177

MR THOMPSON: Given that we are still with - closer to the Hutt Nominees than not, then I am happy to deal with it.

PN178

THE DEPUTY PRESIDENT: All right. Well, perhaps though I might ask the employee representatives in Vissub first.

PN179

MR THOMPSON: Yes.

PN180

THE DEPUTY PRESIDENT: And then I will come to that. All right. Whose - - -

PN181

MS KNOWLES: Me.

PN182

THE DEPUTY PRESIDENT: And you are?

PN183

MS KNOWLES: Samantha Knowles.

PN184

THE DEPUTY PRESIDENT: Thank you. All right. So is there anything you wanted to say either about the process leading to this point or about the agreement itself?

PN185

MS KNOWLES: Not really. We had our meeting and all of our staff got a copy of the agreement and a ballot in an envelope. And they signed the agreement and voted and sealed it and returned it to me after the 2 weeks. So everyone got a chance to vote. Everyone got a copy of everything, so they all got a fair go.

PN186

THE DEPUTY PRESIDENT: All right. And you had the terms of the agreement explained to you?

PN187

MS KNOWLES: Yes, we - at the meeting Stacey went through with us pretty much and everyone got to ask questions if they had any issues with it. And that is about it.

PN188

THE DEPUTY PRESIDENT: Good. All right. And again the - you have seen the agreement I think. In fact you are one of the ones that have signed it.

PN189

MR KNOWLES: Yes.

PN190

THE DEPUTY PRESIDENT: That was the agreement that you were presented with - - -

PN191

MS KNOWLES: Yes.

PN192

THE DEPUTY PRESIDENT: - - - when the notice was given to you - the 14 day notice?

PN193

MS KNOWLES: Yes.

PN194

THE DEPUTY PRESIDENT: All right. Good. Anything further.

PN195

MS KNOWLES: No.

PN196

THE DEPUTY PRESIDENT: Thank you.

PN197

MR THOMPSON: There is only - sorry, your Honour, there is only one employee representative for Vissub, that is Samantha here.

PN198

THE DEPUTY PRESIDENT: All right. Then again I propose to adjourn consideration of this application pending receipt of further material. Perhaps then I will go back to Hutt Nominees. I apologise for that, Mr Thompson, I have just realised. If I can direct your attention to clause 9.1 of the agreement it appears to make reference to Hungry Jacks Bronze Level Achievement Award.

PN199

MR THOMPSON: That would be a - yes, a typographical error too, that has fallen into the agreement.

PN200

THE DEPUTY PRESIDENT: And it also provides that the period of probation can be extended for 3 months probation or such longer period as reasonably required which then has an impact on the period of notice which is specified in 9.2 which seems to presume that there is only a 3 month probationary period.

PN201

MR THOMPSON: That is the - if you were to remove the - well, it is obviously a typographical error as far as the final part of the first sentence is concerned.

PN202

THE DEPUTY PRESIDENT: Yes, well the second issue is about the 3 months probation or such longer period as reasonably required. Whereas the - and then that provides for 1 days' notice whereas you appreciate 9.2 contemplates that after 3 months there is 1 weeks' pay in lieu of notice or 1 weeks' notice.

PN203

MR THOMPSON: That is right. So maybe if I can correct the typographical error in there by confirming that it is a 3 month probationary period and that during the 3 month probation period there is 1 days' notice and thereafter it is 1 week.

PN204

THE DEPUTY PRESIDENT: Again perhaps given the reservation I have raised about that if you have a view about how that should be dealt with under the Act, subject to what I might decide more generally you should feel free to advance that as well in due course.

PN205

MR THOMPSON: Yes, your Honour.

PN206

THE DEPUTY PRESIDENT: All right. Good. Thank you. Then I will deal with the Four Camels Pty Limited Agreement.

PN207

MR THOMPSON: Great name, isn't it?

PN208

THE DEPUTY PRESIDENT: That is a fantastic name. No doubt about it.

PN209

MR THOMPSON: Your Honour, I will take the opportunity to introduce the application again.

PN210

THE DEPUTY PRESIDENT: Yes.

PN211

MR THOMPSON: We seek to have the agreement which was developed under section 170LK of the Workplace Relations Act and is known as the Four Camels Certified Agreement 2003 certified pursuant to section 170LT of the Act. We would submit that the agreement complies with all the requirements of the Act in that it provides a net advantage to employees. It was arrived at with the full understanding and agreement of a valid majority of employees and all employees subject to the agreement received valid notice of the agreement being made. That all time frames stipulated by the Act were complied with and that it contains a dispute settlement clause.

PN212

If it pleases the Commission, I can give a brief background on the development of this agreement also. Once again it is very similar to the others. AWAs have been used in the past and they seek to roll these into a certified agreement on exactly almost identical terms. Apart from representations made in relation to the previous two applications unless there is any other - sorry, there is an issue which should be addressed in relation to this application in that the statutory declaration and the accompanying documents were lacking due to the time frame that was used to get this in here. There was a copy of the agreement signed by the two employees as representatives. I don't believe that what you received included that?

PN213

THE DEPUTY PRESIDENT: No, I didn't.

PN214

MR THOMPSON: Or it wasn't the original?

PN215

THE DEPUTY PRESIDENT: No, no the agreement I have got is not signed by employees.

PN216

MR THOMPSON: If I could hand that on.

PN217

THE DEPUTY PRESIDENT: Thank you. Mr Thompson, look I have - obviously I have had no opportunity to look at this but there are some differences between that copy and the one that was filed with the statutory declarations and I will - - -

PN218

MR THOMPSON: I will need to have a look at that. It is only - I only received it today and there has been any sort of administrative errors made in producing that copy I am happy to address them if that is - - -

PN219

THE DEPUTY PRESIDENT: All right. Well, look, perhaps I might identify some issues that arise from the document that was filed bearing in mind that I have not had a chance to consider what is in the original or the apparent original that was handed up today. And obviously that also raises the questions as to what document it was that was the subject of consideration under the notice.

PN220

MR THOMPSON: Well, yes, your Honour, and thankfully we have the employer and employee representative here who can certainly confirm on record which is which and what was what.

PN221

THE DEPUTY PRESIDENT: Indeed.

PN222

MR THOMPSON: Why it was not - just looking at the version of the agreement that was lodged.

PN223

THE DEPUTY PRESIDENT: Would it be handy if I ran through the issues that may arise?

PN224

MR THOMPSON: Yes, it would, your Honour.

PN225

THE DEPUTY PRESIDENT: And that way you can have a look in the agreement that was just handed up too. The - - -

PN226

MR THOMPSON: I think there might - no, it is all right.

PN227

THE DEPUTY PRESIDENT: Yes, there is - - -

PN228

MR THOMPSON: I think what has happened is - - -

PN229

THE DEPUTY PRESIDENT: Go on.

PN230

MR THOMPSON: - - - is the page that has been lodged, the final signature page, may - because we received only the signature page - - -

PN231

THE DEPUTY PRESIDENT: Yes.

PN232

MR THOMPSON: - - - potentially an earlier version of the agreement was actually lodged with that as the signature page whereas, in actual fact, a subsequent version of the agreement was the one that was actually signed and is before you today.

PN233

THE DEPUTY PRESIDENT: Because as you will appreciate that there are a number of differences here because the agreement - the differences, I mean, between the two documents as well as the previous two applications that I dealt with. There is a different sequencing which is not an issue in itself except that all the cross-references in the one that was filed are incorrect.

PN234

MR THOMPSON: Are incorrect. Yes.

PN235

THE DEPUTY PRESIDENT: And the staff discount at clause 17 has been - and that is the one that is primarily in a different spot and that is what has thrown the balance out but perhaps more importantly than that is that it contains a sick and carers leave provision with 60.8 hours sick leave a year rather than 10 days or 76 hours.

PN236

MR THOMPSON: Okay.

PN237

THE DEPUTY PRESIDENT: And there is a problem between the last page which I accept your explanation for that - - -

PN238

MR THOMPSON: Yes.

PN239

THE DEPUTY PRESIDENT: - - - and the balance of the document because obviously the clause numbers do not line up so - - -

PN240

MR THOMPSON: Okay. I hope to call the employer to give evidence that the document handed to you now, in the Commission, is the document which was signed and which was given to the employees for the purposes of approval is the version of the document that we seek to be certified, if that is going to help settle the matter.

PN241

THE DEPUTY PRESIDENT: Well, I think that is - I think that will be necessary given how strict the Act is in terms of the document.

PN242

MR THOMPSON: So is there any amendment since notification? Certainly - - -

PN243

THE DEPUTY PRESIDENT: Must require the process to be commenced - and I have got no discretion at all on that you will appreciate.

PN244

MR THOMPSON: That is why - shall I call the employer?

PN245

THE DEPUTY PRESIDENT: Very well.

PN246

MR THOMPSON: Just from the bar?

PN247

THE DEPUTY PRESIDENT: Look, I think from the bar table would be fine in the circumstances.

PN248

MR THOMPSON: Okay then. If you want to just address those to the Commission.

PN249

MR HIGGINS: Well, I am not really sure what has happened because simply, the document that I faxed through to them I believe was one I handed in today. I am not quite sure what the difference is myself but certainly nothing has been changed in the document that has been presented to us and that I subsequently presented to staff.

PN250

THE DEPUTY PRESIDENT: All right. Well, perhaps, Mr Thompson, you might arrange - make sure that he has a copy of the agreement that was filed. All right. Well, I mean there are - it is not just the back page I should say.

PN251

MR THOMPSON: Yes.

PN252

THE DEPUTY PRESIDENT: It is a different document. The one that was filed.

PN253

MR THOMPSON: That is right. I am just explaining that the back page was faxed to us for the purposes of lodging within the time frame to get it to the hearing today and therefore, apart from the signature page, somebody has pulled a version of the agreement from the PC which is a prior version as opposed to the rest of the document which was still here in South Australia. The whole document has been handed to you today and has not been changed since the day that notice was given. The version that is current today and that you can see is the original copy, is the original agreement.

PN254

THE DEPUTY PRESIDENT: Right, Mr Higgins, is it?

PN255

MR HIGGINS: Yes, that is correct.

PN256

THE DEPUTY PRESIDENT: Mr Higgins, you are confirming to the Commission, the document that was handed up today is the one that you displayed in the workplace and was subject to the 14 day notice?

PN257

MR HIGGINS: That is correct. It was displayed in each of the three workplaces and that was the one that the staff voted on.

PN258

THE DEPUTY PRESIDENT: Thank you. Well, perhaps in that context, perhaps the employee representatives could be shown a copy of this that has just been handed up? So ladies, perhaps you might identify yourselves and then confirm both that issue and anything else you wish to say.

PN259

MS TONKIN: I am Natalie Tonkin.

PN260

THE DEPUTY PRESIDENT: Yes, Ms Tonkin.

PN261

MS TONKIN: That seems correct.

PN262

THE DEPUTY PRESIDENT: So that is the agreement that was displayed and made available. That is the one that was voted on.

PN263

MS TONKIN. That was. It certainly was, yes.

PN264

THE DEPUTY PRESIDENT: All right. Good, thank you.

PN265

MS MIFSUD: I am Teresa Mifsud and that was the one that was displayed and the one that we had voted on.

PN266

THE DEPUTY PRESIDENT: Good. Is there anything else that either of you wish to say either then about the process or about the agreement itself?

PN267

MS TONKIN: No.

PN268

MS MIFSUD: Everything was done according to procedure.

PN269

THE DEPUTY PRESIDENT: All right, thank you. Mr Thompson?

PN270

MR THOMPSON: Unless there is any other specific points on the Four Camels proposed certified agreement or application then I would not have any other comments apart from, sir, to come back to you with the same additional documentation and representations as are proposed for the previous two applications.

PN271

THE DEPUTY PRESIDENT: All right. Yes, well, all I can say obviously it would have been prudent to have more carefully checked the paperwork.

PN272

MR THOMPSON: Certainly, it would have, your Honour.

PN273

THE DEPUTY PRESIDENT: You will appreciate that the clients have actually unintentionally put in a false affidavit only because of the material that was attached to it, not because of any malice or mal-intent. I accept that completely but that is obviously not terribly satisfactory from the Commission's point of view.

PN274

MR THOMPSON: I completely understand that and apologise on our behalf.

PN275

THE DEPUTY PRESIDENT: All right. Well, then look, I will note the document that has been handed up in the Four Camel's agreement matter is the document that was the subject to the process and the Commission understands that that is the document which the parties intended to have been attached to the statutory declaration.

PN276

MR THOMPSON: Yes.

PN277

THE DEPUTY PRESIDENT: All right. In wish case I will also reserve that decision and await any of the further material and/or of submissions and give parties in each of the matters a decision at the earliest opportunity. Thank you. The Commission will be adjourned.

ADJOURNED ACCORDINGLY [3.10pm]