AG2003/835, Transcript of Proceedings [2003] AIRCTrans 358 (4 February 2003)

AUSCRIPT PTY LTD
ABN 76 082 664 220

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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT DUNCAN

AG2003/835

APPLICATION FOR CERTIFICATION
OF AGREEMENT

Application under section 170LK of the
Act by Shoal Bay Asset Management Pty Limited
and Shoal Bay Property Corporation Pty Limited
trading as Shoal Bay Resort & Spa for
certification of the Shoal Bay Resort & Spa
Certified Agreement 2003-2006

SYDNEY

9.35 AM, TUESDAY, 21 JANUARY 2003

PN1

THE SENIOR DEPUTY PRESIDENT: Good morning. Could I have appearances, please?

PN2

MR W. AGNEW: Yes, your Honour. I am a solicitor appearing on behalf of both companies. I have with me MR M. JONES, who is the resort general manager, and also the resort's human resources manager,

PN3

MR C. WHITE. I seek leave to appear.

PN4

MS S. POTTS: Your Honour, I am the elected representative for the employees at Shoal Bay Resort and Spa.

PN5

THE SENIOR DEPUTY PRESIDENT: Thank you, Ms Potts. Insofar as leave is necessary, I grant leave to Mr Agnew. Yes, Mr Agnew?

PN6

MR AGNEW: Your Honour, I just refer to the material that has been filed with the application and they are two statutory declarations in the same terms, one by Mr Jones and one by Ms Potts who are both here today. I understand your Honour has a series of questions. I'm quite prepared to answer those now or if you wish another course of action I'm quite willing to do so.

PN7

THE SENIOR DEPUTY PRESIDENT: No. You rely on the statutory declarations?

PN8

MR AGNEW: I certainly do, your Honour, yes.

PN9

THE SENIOR DEPUTY PRESIDENT: That being the case, I think we could move straight to the questions. I have a few additional ones that come through reading the text of the agreement but I'll deal with them when you've dealt with the ones you're prepared for.

PN10

MR AGNEW: Your Honour, I think the first question that you were seeking was whether or not the corporations are related for the purposes of the act in terms of whether they are either a joint venture or a common enterprise. I would seek to tender just a short form company extract which shows - I've marked the particular page. It does show on the extract on the second page that Shoal Bay Asset Management which is the company extract that I'm handing up to you and I seek to tender that.

PN11

THE SENIOR DEPUTY PRESIDENT: I'll mark an ASIC company extract exhibit Shoal Bay 1.

EXHIBIT #SHOAL BAY 1 ASIC COMPANY EXTRACT

PN12

MR AGNEW: If you go to that second page, your Honour, it quite clearly shows that Shoal Bay Property Corporation is the sole shareholder of Shoal Bay Assets so it's a whole subsidiary.

PN13

THE SENIOR DEPUTY PRESIDENT: I did suspect that was the case, Mr Agnew, but as you appreciate, it's a jurisdictional point. We need to be clear on it. Thank you.

PN14

MR AGNEW: Thank you, your Honour. In turning to the second question, your Honour, to explain the difference of employers, if I can just simply make you some submissions about, I suppose, Shoal Bay Resort itself. Originally it was a hotel/pub. In fact, it called itself a country club and still does, the hotel/pub side of things and in the last 12 to 18 months, they've developed a number of high class accommodation which is the resort aspect and spa aspect.

PN15

Now, the hotel or pub employees are actually employed by Shoal Bay Property Corporation and the resort employees are employed by Shoal Bay Asset Management.

PN16

THE SENIOR DEPUTY PRESIDENT: I see, there's a clear distinction between the two groups.

PN17

MR AGNEW: Yes, and that is why the two companies are named in the document as the two employers. Does that satisfy your Honour?

PN18

THE SENIOR DEPUTY PRESIDENT: Yes, it's a joint enterprise.

PN19

MR AGNEW: That's correct.

PN20

THE SENIOR DEPUTY PRESIDENT: Yes, it does. Yes, I do understand the arrangement there.

PN21

MR AGNEW: Your Honour, the third question that you asked was there was no reference in the material, either of Ms Potts or Mr Jones in terms of the other safety net award which was the Federal Hotel Managerial Staff Award. The reason for that, if I can hand up a copy of that award unless your Honour has one.

PN22

THE SENIOR DEPUTY PRESIDENT: No, I don't.

PN23

MR AGNEW: I'd seek to tender that also, your Honour.

PN24

THE SENIOR DEPUTY PRESIDENT: If it's a copy of the award, yes, I won't mark it, Mr Agnew. I accept the document as it's standing for itself.

PN25

MR AGNEW: Yes, it is from Osiris, your Honour. If you go to the part marked which is clause 24, there is a salary exemption or a complete exemption in this current award of 24,000. I should make your Honour, though, aware that this award is undergoing award simplification before Commissioner Lacy at the moment and I'm not quite sure at what stage it's at not being a party or at least myself being a party to that proceedings, but that is the reason why there was really no reference because if you look at the document, there is a managerial minimum salary on page 17 of clause 3.2.1 of 36,000.

PN26

THE SENIOR DEPUTY PRESIDENT: Yes, I noticed that.

PN27

MR AGNEW: Does that satisfy your Honour?

PN28

THE SENIOR DEPUTY PRESIDENT: Yes, that means that the award has no effect on the managers of this particular enterprise.

PN29

MR AGNEW: That is correct whereas under the agreement, they at least have some minimum conditions established.

PN30

THE SENIOR DEPUTY PRESIDENT: Yes, there's a benefit to them. We'll come back to that too, there's a point about the wording of that, but go ahead with the others.

PN31

MR AGNEW: The other question you had, you wanted a rate comparison done. What I've done is I've taken four employees from different areas of the hotel and I would seek to tender those four documents and what they have attached to them are (a) the time sheets and (b) the payroll print out or report of how much is actually made.

PN32

THE SENIOR DEPUTY PRESIDENT: I'll mark the bundle of pay print outs and other calculations Shoal Bay 2.

EXHIBIT #SHOAL BAY 2 BUNDLE OF PAY PRINT OUTS AND OTHER CALCULATIONS

PN33

MR AGNEW: Your Honour, if you look at those documents and if you want some time, I have no objection to waiting.

PN34

THE SENIOR DEPUTY PRESIDENT: I'm glad of that. I'll simply be seeing what they are, Mr Agnew. Yes?

PN35

MR AGNEW: Just to assist, your Honour, most of the employees, as you know from the material, are casual and the comparison I've done there is casual under the award compared to casual flat rate, the loaded rate that you see in the document at 3.2.1.

PN36

THE SENIOR DEPUTY PRESIDENT: Yes.

PN37

MR AGNEW: Now, the whole idea due to the hours of work and the flexibility that were given, particularly for the part timers is to offer all staff the opportunity to go onto part time employment rather than the casual employment so that may be a bit of a misnomer in terms of comparing some of those staff members because we don't, at the moment, until the documents are proved, we don't know whether some of these staff members that you've got before you may take up either full time or part time employment.

PN38

THE SENIOR DEPUTY PRESIDENT: Yes. All the examples are casual because they're the preponderance at the moment?

PN39

MR AGNEW: Correct. Yes, I'd refer you to that part of the statutory declaration. Out of 194 employees and remember there are probably about 20 managers, at 5.5 of the statutory declaration, it says 110 of 194 staff are casuals. It's a very large percentage.

PN40

THE SENIOR DEPUTY PRESIDENT: Which is not unusual in an organisation such as this.

PN41

MR AGNEW: Not in hospitality but the tendency through these arrangements, as you're quite familiar with, your Honour, is to try and offer permanency of employment. The last issue is to do with hours of work. I'd really probably ask your Honour for some direction on what your concern or major concern with that was otherwise I can sort of go through and point out some of the differences between the award and the agreement for full timers and part timers - - -

PN42

THE SENIOR DEPUTY PRESIDENT: In very general terms, the concern is given the nature of the monetary compliance with the no disadvantage test which while it appears to do so doesn't do so with colours flying and bands playing.

PN43

MR AGNEW: Yes.

PN44

THE SENIOR DEPUTY PRESIDENT: Given that, what is it that balances these non monetary deductions or different conditions for the purposes of the no disadvantage test?

PN45

MR AGNEW: Well, the number one is, I mean, for instance, if you do look at the hours of work, the part time provisions in the award, if you looked at say clause 13.3 of the award where you have the regular part time provision, you'll find, your Honour, in that clause there is no, for instance, weekly minimum or guarantee of hours.

PN46

THE SENIOR DEPUTY PRESIDENT: I see, yes, in the hospitality award?

PN47

MR AGNEW: Yes.

PN48

THE SENIOR DEPUTY PRESIDENT: Yes, go on.

PN49

MR AGNEW: Whereas in this agreement, if you look at clause 4.2, there is an average of at least eight or up to 38 hours. So there's a guaranteed minimum number of hours which could well be better than the award but more importantly, I think, one of the key aspects is by having these flexible hours that they're able to offer permanency of employment over casualisation which gives more security for the employee. That's the first non momentary benefit. The second is, which I think is unique in a hospitality organisation, at clause 5.5, the parental leave aspect that introduced six weeks' paid leave - and I should say that that is parental leave, so that's on both sides of the fence.

PN50

THE SENIOR DEPUTY PRESIDENT: Yes. I do note that and, while it won't affect everybody, one trusts, it is a significant factor.

PN51

MR AGNEW: The other issue is that there is what is called a personal leave incentive, that they get paid two days a year, an incentive scheme, plus I should pint out that the personal leave is a broader concept than under the award in that they can access the full 10 days, for example, for carer's leave purposes.

PN52

THE SENIOR DEPUTY PRESIDENT: Yes - even bereavement leave, I think.

PN53

MR AGNEW: I believe that is the case. Yes, yes, that is the case, your Honour.

PN54

THE SENIOR DEPUTY PRESIDENT: Yes, that's the kind of thing I needed my attention drawn to, Mr Agnew.

PN55

MR AGNEW: The other Issue, I think, would be to do with going back to the audit test at the end of the day, which is Appendix 1, which is the checking of the wages at the end of 12 months or on termination.

PN56

THE SENIOR DEPUTY PRESIDENT: That addresses the monetary side of things?

PN57

MR AGNEW: Yes.

PN58

THE SENIOR DEPUTY PRESIDENT: It doesn't necessarily address the concern I expressed to you before, which you have been responding to - I note that.

PN59

MR AGNEW: I suppose another monetary issue is that performance pay system which I failed to mention. There is a performance pay system which enables employees to get at least 3 per cent above their award rate, which is set out in Appendix 2 and also in 3.2.1 of the agreement.

PN60

THE SENIOR DEPUTY PRESIDENT: Yes, and, of course, there's another totally unrelated benefit in that agreement. There are no junior rates.

PN61

MR AGNEW: That's correct, your Honour, yes.

PN62

THE SENIOR DEPUTY PRESIDENT: In hospitality that's significant. Well, it's significant anyway but it's particularly significant in hospitality.

PN63

MR AGNEW: I consider it a large concession, yes, your Honour. Apart form that, your Honour, if you have other questions I'm quite prepared to answer them.

PN64

THE SENIOR DEPUTY PRESIDENT: Yes, well, we'll move to those now. The first one is pure curiosity. There's a reference to plans to expand in Western Australia, in the overhead slides.

PN65

MR AGNEW: No, that's probably an error on my part. I might have put the wrong overhead. No, that's a typographical error.

PN66

THE SENIOR DEPUTY PRESIDENT: All right. I don't think it affects the explanation to the staff.

PN67

MR AGNEW: It's my mistake. I've downloaded the wrong draft.

PN68

THE SENIOR DEPUTY PRESIDENT: I see. I'll simply note that,

PN69

Mr Agnew. Are casuals required to give notice?

PN70

MR AGNEW: There is a provision, I think, of one hour. I would have to double-check but my recollection - - -

PN71

THE SENIOR DEPUTY PRESIDENT: I couldn't find it but that's not to say it isn't there. It's a fairly comprehensive agreement.

PN72

MR AGNEW: No, your Honour, they're not.

PN73

THE SENIOR DEPUTY PRESIDENT: They're not? Very well. Now, can I take you to 2.8.5 in the agreement? There's a reference to 2.8.6 which I think should be a reference to 2.8.7

PN74

MR AGNEW: In 2.8.5?

PN75

THE SENIOR DEPUTY PRESIDENT: In 2.8.5, in the last phrase there's a reference to clause 2.8.6. I think that should be 2.8.7.

PN76

MR AGNEW: That's correct, your Honour.

PN77

THE SENIOR DEPUTY PRESIDENT: That simply needs to be noted on the record. It's a typographical error.

PN78

MR AGNEW: Yes. If I can take you to 3.2.2: the second question is:

PN79

Are managers exempt from some parts of this agreement?

PN80

What follows confuses me. I'm not sure that I can work it out:

PN81

Yes. All employees appointed as a manager will be excluded from the following provisions of this agreement except for the following clauses and part.

PN82

The two "followings" have me quite unclear as to what that really means.

PN83

MR AGNEW: Basically those parts and those clauses listed are the ones that will apply to the managers.

PN84

THE SENIOR DEPUTY PRESIDENT: So that the clause really means:

PN85

Yes. All employees appointed as a manager will be excluded from this agreement except for the following clauses.

PN86

MR AGNEW: Correct. It's legalese and my error.

PN87

THE SENIOR DEPUTY PRESIDENT: I see. Right. Then 3.6.4: are ordinary time earnings for superannuation the loaded rate in appropriate cases?

PN88

MR AGNEW: Yes, yes, they are, your Honour.

PN89

THE SENIOR DEPUTY PRESIDENT: Good. Then 4.1.1(a): the way the average of 38 hours per week is worked. I think I know the answer to this question but I put it to you just the same. Will full-time employees always get - - -

PN90

MR AGNEW: 38 hours, yes.

PN91

THE SENIOR DEPUTY PRESIDENT: - - - an average over the four weeks?

PN92

MR AGNEW: Correct.

PN93

THE SENIOR DEPUTY PRESIDENT: They would not be strictly full-time employees if they didn't.

PN94

MR AGNEW: Correct.

PN95

THE SENIOR DEPUTY PRESIDENT: Then 5.1.3, the third sentence. I think there's a "no" missing:

PN96

- provided further that if there is no mutual agreement as to when your annual leave should be taken the resort may direct that you take all or part of your annual leave on giving at least 14 days' notice.

PN97

MR AGNEW: Correct, your Honour.

PN98

THE SENIOR DEPUTY PRESIDENT: Now, the final question I have reveals my ignorance about the current system of workers compensation in this state. Paragraph 6.2: is the effect of 6.2.1 that there is in fact accident pay as we used to understand it, that is, a make-up pay, or is it the fact that the new legislation in this state requires payment of previous earnings?

PN99

MR AGNEW: I believe it's the latter but I just want to ask - - -

PN100

THE SENIOR DEPUTY PRESIDENT: It is previous earnings?

PN101

MR AGNEW: Yes. I thought it was the latter.

PN102

THE SENIOR DEPUTY PRESIDENT: In other words, it's comparable to the old provision in the Federal Awards that had a make-up in effect?

PN103

MR AGNEW: Yes, Victoria, for instance, yes, your Honour.

PN104

THE SENIOR DEPUTY PRESIDENT: Yes. That's all, Mr Agnew, that I have. Thank you very much.

PN105

MR AGNEW: Thank you, your Honour.

PN106

THE SENIOR DEPUTY PRESIDENT: Ms Potts, do you wish to add anything to that?

PN107

MS POTTS: No, your Honour.

PN108

THE SENIOR DEPUTY PRESIDENT: Very good, thank you. I can proceed to a decision. This is an application by Shoal Bay Asset Management Pty Limited and Shoal Bay Property Corporation Pty Limited, trading as Shoal Bay Resort and Spa, for certification of an agreement made under section 170LK of the Workplace Relations Act 1996. The agreement is to be known as the Shoal Bay Resort and Spa Certified Agreement 2003-2006.

PN109

On the basis of the statutory declarations filed herein and on the basis made at the hearing by Mr Agnew, I'm satisfied the agreement relates to the whole of a single business. The employers are constitutional corporations for the purposes of Division 2 of part VIB of the Act and they are related companies for those purposes, that the communication and explanation of the terms of the agreement were appropriate and met the requirements of the Act.

PN110

The notice given by the employer stated that any person potentially subject to the agreement, a member of an organisation of employees entitled to represent that employee could ask the organisation to represent them and no such request was made. A valid majority of persons employed at the time have genuinely made the agreement. There is a dispute settling procedure.

PN111

The nominal date of expiry of the agreement, 1 January 2006, is not more than three years after the date on which the agreement will come into operation, that there are no reasons set out in section 170LU of the Act why the Commission must refuse to certify the agreement. The agreement satisfies the requirements of the no disadvantage test expressed in section 170XA of the Act. In coming to that final conclusion I rely on, as well as the submission, the statutory declarations filed and the explanations given by Mr Agnew this morning.

PN112

The application is accordingly granted with effect from today, 21 January 2003. Formal certification will issue in due course. I adjourn the Commission indefinitely.

ADJOURNED INDEFINITELY [9:58am]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #SHOAL BAY 1 ASIC COMPANY EXTRACT PN12
EXHIBIT #SHOAL BAY 2 BUNDLE OF PAY PRINT OUTS AND OTHER CALCULATIONS PN33