AG2003/6091, Transcript of Proceedings [2003] AIRCTrans 3604 (20 August 2003)

AUSCRIPT PTY LTD
ABN 76 082 664 220

Level 7, ANZ House 13 Grenfell St ADELAIDE SA 5000
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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

DEPUTY PRESIDENT HAMPTON

AG2003/6091

APPLICATION FOR CERTIFICATION
OF AGREEMENT

Application under section 170LK of the Act
by Complete Personnel SA Pty Limited and Others
for certification of the Complete Personnel
Certified Agreement 2003

ADELAIDE

10.40 AM, TUESDAY, 5 AUGUST 2003

PN1

MR A. CLARE: I appear for the applicants, who are Complete Personnel SA Pty Ltd and Complete Personnel Australia Pty Ltd and I appear with MR C. LEHMAN, who is General Manager of both companies.

PN2

MS L. GARRARD: Lorette Garrard.

PN3

THE DEPUTY PRESIDENT: Ms Garrard, I understand you are an employee representative?

PN4

MS GARRARD: Yes.

PN5

THE DEPUTY PRESIDENT: All right. Perhaps for the record I should indicate that Ms Warren is currently on the speaker phone and hopefully you can hear us?

PN6

MS WARREN: Yes, I can.

PN7

THE DEPUTY PRESIDENT: All right. Very well. Yes, Mr Clare.

PN8

MR CLARE: Deputy President, this is an application for certification of an agreement under section 170LK, an agreement that has been negotiated direct with employees. As I said, there are two companies, Complete Personnel SA Pty Ltd and Complete Personnel Australia Pty Ltd. Just one matter about the agreements: it is the same agreement but one was signed by an employee representative of SA, which would have been Ms Warren, and one was signed by a representative of Australia, which would have been Ms Garrard.

PN9

I only have copies signed by Ms Garrard so I think the Registry might have kept one of the copies signed by Ms Warren and hopefully you have got a copy on file of the one signed so that is just to sort that out. All the copies I got back were all signed by Ms Garrard. The same clauses have been signed by Mr Lehman on behalf of the company but all the ones I have, have been signed by Ms Garrard. I should have two of each.

PN10

THE DEPUTY PRESIDENT: All right. Well, Mr Clare, there are a number of issues that arise from that. Obviously I need to be clear whether or not there are in fact two applications and two agreements or one application and one agreement.

PN11

MR CLARE: It is one application and one agreement. it is the same business. There's just different locations. The SA company, if I refer to it as that, which is Complete Personnel SA, employs employees working currently at sites at Port Augusta, Port Pirie and Ceduna. The Australia company, Complete Personnel Australia, employs employees currently working at Blair Athol. Complete Personnel is a member of the Federal Government's Job Network.

PN12

They have one contract with the Department of Employment and Workplace Relations and that contract involves them assisting unemployed people to get employment. So there's the one contract and what, in effect, happens is that Complete Personnel SA subcontracts to Complete Personnel Australia. It is the same business working on the same Federal Government contract. That is why there's the one agreement to cover both companies and all employees.

PN13

THE DEPUTY PRESIDENT: So, in that context there are two signature pages.

PN14

MR CLARE: Sorry?

PN15

THE DEPUTY PRESIDENT: There might be two signature pages?

PN16

MR CLARE: There's two signature pages because we could have probably had - we had two employee representatives because there are two employers so one was from SA and one was from Australia so we had the documents signed by both employee representatives and on behalf of the two different companies as well.

PN17

THE DEPUTY PRESIDENT: So, obviously what arises from that, if I take for present purposes that we are dealing with one application and one agreement?

PN18

MR CLARE: One application and one agreement.

PN19

THE DEPUTY PRESIDENT: Is whether or not the two businesses are a single business for the purposes of the Act?

PN20

MR CLARE: Well, we will say it is the same business because it is the same contract that is worked on by the Department of Employment and Workplace Relations. My client gets one contract and that contract is the business and you will see by the agreement that is a maximum three-year contract and the agreement and the employment of all the employees is affected by that contract. If it is not renewed, for example, then that is effectively the end of the business and that is the end of employment for all the employees. That is right, isn't it, Craig?

PN21

MR LEHMAN: Unfortunately it is, yes.

PN22

THE DEPUTY PRESIDENT: I take it then, Mr Lehman, you are of the - I will get the term right.

PN23

MR CLARE: General manager.

PN24

THE DEPUTY PRESIDENT: General manager of both companies?

PN25

MR LEHMAN: Yes, that is correct, sir.

PN26

THE DEPUTY PRESIDENT: Well, look, I indicate that for present purposes I'm satisfied that both corporations are conducting a single business for the purposes of this application.

PN27

MR CLARE: Thank you, Deputy President. You'll see - there's three statutory declarations that have been filed: one by Mr Lehman and one by Kelly Nicole Warren, who is the employee representative for employees of SA and one by Lorette May Garrard, who is the employee representative for employees of Australia. If I just go through the process, Deputy President. Firstly if I just give you some background it might be helpful. This is a business that has been going for about five years and up to this time what exists is a combination of individual contracts of employment and then essentially employees, clerical staff, admin's assistants are being paid under the Clerks SA Award.

PN28

The idea of applying for a certified agreement was to standardise across all employees because what the employer has found is that there were different contracts with different conditions and people didn't quite know where they stood, especially when it came to salary increases. For example, a 2 per cent salary increase across-the-board would mean different things to different people so the idea was to standardise it so everyone knew where the stood and everyone knew where they stood in relation to everyone else. So that is essentially it, isn't it?

PN29

MR LEHMAN: That is right. It is a transparent document. That is what we want, something that everyone is aware of prior to commencement of the company and also while they are working for the company.

PN30

MR CLARE: There was an initial draft sent to all employees about 11 April, 2003. That initial draft didn't change very much from the document before you, Deputy President, mainly typographical errors and the document before you incorporates an increase. There was an increase of - - -

PN31

MR LEHMAN: $17 from the Federal - - -

PN32

MR CLARE: $17 Federally.

PN33

MR LEHMAN: So we anticipated that would come through at the State level so we - - -

PN34

MR CLARE: Factored it in.

PN35

THE DEPUTY PRESIDENT: It has turned out to be correct.

PN36

MR CLARE: So we factored that in, but so from very early on in mid-April there's a document that essentially embodies all the terms and conditions sent to employees. Information sessions were held, employees were given a document of it or access to it on-line electronically and they were invited to review the document and they were invited to raise questions and issues with their team leaders or their general manager.

PN37

What came out of that was basically the issues raised were in relation to mechanics: how does it work? No issues were raised: what does this clause mean or how will it affect us but: how does this clause work? For example, there's a clause about being able to purchase annual leave and how does that work? That was one question that was asked. But as far as any problem with any clauses, none were raised by the employees.

PN38

MR LEHMAN: No, not at all and like I said, we got the typographical issues raised to me, inconsistencies of, you know, terms and so forth but nothing other than the mechanics of "How do I purchase additional leave?", that type of inquiry.

PN39

MR CLARE: The next step in the process was that Notice of Intention to Make a Certified Agreement was served on all employees on 6 June, 2003. I have a copy of that notice, Deputy President.

PN40

THE DEPUTY PRESIDENT: Thank you.

PN41

MR CLARE: There's two; one for each company.

PN42

THE SENIOR DEPUTY PRESIDENT: Very well.

PN43

MR CLARE: And this was attached to the notice. That is a summary of the key features of the certified agreement.

EXHIBIT #A1 TWO NOTICES OF INTENTION TO MAKE A CERTIFIED AGREEMENT SERVED ON 06/06/2003

EXHIBIT #A2 SUMMARY OF KEY FEATURES FORWARDED TO EMPLOYEES WITH EXHIBIT #A2

PN44

THE SENIOR DEPUTY PRESIDENT: Thank you.

PN45

MR CLARE: In addition, a copy of the agreement was made available to all employees electronically and a printed copy was available on request. Then a secret ballot was held on 23 June, 2003 in which there was 100 per cent employee approval of the agreement and 100 per cent voted. Now, Deputy President, this may be a problem I think to be overcome, but between 6 June when the notice was sent out and 23 June, Complete Personnel Australia employed five new employees. It is an expanding business.

PN46

They are one of the few providers who actually had their contract expanded and in particular for the site - they essentially got a new site and at that new site work was to commence on 1 July so they needed employees to accommodate that before 1 July to get them up and running. So there was a period of expansion between 6 June and 23 June and there was five new employees and Ms Garrard is one of those employees. She commenced on 10 June. That was a long weekend so the notice was given on 6 June, which was a Friday and then that was the Queen's Birthday long weekend and Ms Garrard started on Tuesday, 10 June but there were also five other employees including an employee who started on the day of the vote.

PN47

So the vote was at 4 pm in the afternoon and there was an employee who started that morning. Now, those employees were all provided with a copy of the agreement with their offers of employment so before they commenced employment with us because the idea was: "This is going to be your terms and conditions of employment". As to the notice, they were all provided with the notice, not before they started employment but not soon after they started. For example, Ms Garrard received a copy of the notice two days after she commenced and the other employees - we are not exactly sure but within a few days of them commencing.

PN48

Now, obviously the one who commenced on 23 June only got everything that morning. Now, for the purposes of the Act it would be our submission that the companies have complied with taking reasonable steps to provide notice. Obviously they couldn't provide 14 day's notice to employees who were just starting and who have started after the notice has been given and they are not going to stop employing people. That is the worst thing they can do and they are employing people because of what was happening with their contract with the Federal Government and they started this process back in April so they weren't aware of what as going to happen.

PN49

So rather than stop and start the process again, they've provided all the new employees with copies of the agreement before they started employment, then provided them with copies of the notice as soon as they were able. All of those employees voted and voted in favour of the agreement and, as I said, it would be our submission that we've satisfied the Act in taking reasonable steps. Even though some of those employees haven't received the 14 day's notice, we've taken reasonable steps to give them as much notice as we could.

PN50

THE SENIOR DEPUTY PRESIDENT: Mr Clare, I wasn't aware until you raised it that this issue would arise - - -

PN51

MR CLARE: I wasn't aware until this morning, to about 15 minutes ago and neither was my client until 10 o'clock this morning.

PN52

THE SENIOR DEPUTY PRESIDENT: Very well. I have dealt with a similar circumstance in a decision a couple of years ago concerning the National Wine Centre. I indicate now that I would want to review that decision, review both the findings I made and the approach that I took in relation to similar circumstances where persons were employed during the 14 day period contemplated in the Act. So I merely indicate that I will want to consider what you have said and consider that and other decisions of the Commission before I ultimately determine the application.

PN53

MR CLARE: We thought that might be the case. That is why we've raised it now because we saw it immediately as a potential problem under the Act and the notice requirements and understandably there's good reason fro those notice requirement, but from the companies' point of view they are not going to stop employing people for 14 days, in fact as it turned out, a very important 14 days for them, leading up to their contract and it is unfortunate it turned out that way butas I said, it would be my submission that we have taken all reasonable steps, or all steps we could possibly take to ensure that the employees had as much notice as possible of the certification.

PN54

THE DEPUTY PRESIDENT: Yes, look, it seems to me that there are a number of issues that have to be dealt with here. One is whether the notice that is required under section 170LK(2) and (3) and (4), which is the same notice that is contemplated, where the notice has to be given to those new employees in the further 14 days elapses. I understand what you say about that, that may in some businesses mean they could never comply with the Act and I doubt whether that is the interpretation of the - sorry, I doubt that is the intention of the Act, but I will consider that further.

PN55

There is, however, the issue that arises because of section 170LK(7), which is a separate obligation about reasonable steps to ensure the terms of the agreement were explained to all employees who are persons employed at the time. Now, the question is what, "at the time" means and whether reasonable steps were taken, and you will appreciate that draws in part on section 170LE which is the valid majority provision, and that also indicates that the employer must give all persons so employed a reasonable opportunity to decide whether they want to make the agreement, or give the approval.

PN56

Now, in that context obviously I need to consider whether in the circumstances it can be said that the employer gave all the persons so employed a reasonable opportunity to decide, particularly those that came into the picture very late, and obviously I would also need to consider what the Act means when it talks about "all persons so employed", because it refers earlier in that section to "at a particular time". Now, what does "a particular time" mean in the context of removing fees, just something that I did have to consider in that other matter and I will need to consider in this case.

PN57

MR CLARE: Certainly, but the other point I would make, Deputy President, is that even if the five employees had voted against the agreement it would still have a valid majority. There is 33 employees with those five and that would mean 28 would have voted in favour.

PN58

THE DEPUTY PRESIDENT: Yes, well, look, whilst I understand the logic of that, I'm not sure that that of itself means that section 170LK was complied with because the Act is very clear that it is about reasonable steps, which obviously is a value judgment, but reasonable steps in relation to all persons employed at the time. And the valid majority is then a second question so I just need to work through that.

PN59

MR CLARE: Certainly. After the vote on 23 June the agreements were then signed with no change at all to the agreements. They are signed by Mr Lehman on behalf of each of the companies and ours signed by Ms Warren on behalf of the employees of SA, and Ms Garrard on behalf of the employees of Australia. That took place on 2 July 2003 and the application was lodged on 22 July 2003.

PN60

You can see by the notice, Deputy President, that the employees were expressly informed that they have a right to have a union representation. My understanding is no request was made by any employees for union representation.

PN61

MR. LEHMAN: That is correct, on-site.

PN62

MR CLARE: As to the no disadvantage test, as I said previously, most employees were covered by the Clerks' SA Award. Those that weren't covered by that award - or aren't covered by that award are award-free. That is the award that is used by complete personnel as the safety net underpinning the employment of all its employees, and the agreement does not result on a balance in a reduction of the overall terms and conditions of employment. There are definite advantages above the Clerks' Award. For example - - -

PN63

THE DEPUTY PRESIDENT: Mr Clare, sorry, to interrupt you - - -

PN64

MR CLARE: Yes, sir.

PN65

THE DEPUTY PRESIDENT: - - - but before you go to that perhaps I can take you back to the earlier statement and, in particular, that there are some employees that are award-free. I think I need to know precisely the - sort of the classifications and the nature of the work - - -

PN66

MR LEHMAN: Sure. Basically, the organisation runs - I suppose we have got administrative staff who are covered by the Clerks' SA who do payroll and so forth.

PN67

THE DEPUTY PRESIDENT: Yes.

PN68

MR LEHMAN: And reception duties. Other than that we effectively have a structure of associate improvement consultant, someone who is effectively in training one would say. An employment or recruitment consultant as a general level and that is where the vast majority of staff are. It is a very flat structure I must say. Other than that we have some senior recruitment consultants, those people who are senior by I suppose longevity with the company in some cases, but also due to experience, and we have site team leaders who look after a particular site. Above that there is myself and a couple of other managers.

PN69

MR CLARE: The site team leaders would be like managers, that sort of thing.

PN70

MR LEHMAN: Essentially, they are responsible for a specific site so Blair Athol or Enfield or you know - - -

PN71

MR CLARE: The recruitment staff are the ones whose job it is to - they would interview unemployed people - - -

PN72

MR LEHMAN: That is correct.

PN73

MR CLARE: Then deal with potential employers.

PN74

MR LEHMAN: That is right, yes, effectively, that is right.

PN75

MR CLARE: And try and find them employment.

PN76

THE DEPUTY PRESIDENT: Well, look, there is something that does arise from that which bears upon the application of the no disadvantage test is to be found in section 170XE of the Act. I'm sorry, it is the - - -

PN77

MR CLARE: XF I think, is that right?

PN78

THE DEPUTY PRESIDENT: Yes, that is right, it is XF.

PN79

MR CLARE: Yes, XF.

PN80

THE DEPUTY PRESIDENT: Yes. What that indicates is that if the employer proposed to make a certified agreement and there is no relevant award in relation to some or all of the persons to whom the agreement will apply, now on face value there seems to be an obligation to apply to have an award designated. Now, in that context I think unless you can persuade me to the contrary, it is probably a requirement of the Act for you to make a 170XF application to determine an Award, presumably the Clerks' SA Award, as the safety net award for those employees, who I think you correctly describe as, not falling under the scope of the Clerks' SA Award.

PN81

MR CLARE: No, and that they are appropriate to fall under - well, to use that as a determined award.

PN82

THE DEPUTY PRESIDENT: Yes.

PN83

MR CLARE: Yes.

PN84

THE DEPUTY PRESIDENT: Yes, because it seems to me that the Act presumes that there is a designated award, to use the expression in the Act, for all employees, if employees are covered at law by an existing award then that award is used, but if they are not covered by an award the Act seems to contemplate that there will be in fact an award designated for this purpose. There is nothing to prevent an application being made after an application is made.

PN85

MR CLARE: No. Well, what we might - Deputy President, I think if it is convenient to you, we will see what you think about the other notice problems and then if we do need to make an application we will do that, but obviously if there is going to be some difficulty because of the new employees notice, we still do that but then we may be back to sending out a notice again.

PN86

THE DEPUTY PRESIDENT: All right.

PN87

MR CLARE: So I will take that on board and realise - but look I can indicate that if you were inclined to certifying the agreement, it would make that application.

PN88

THE DEPUTY PRESIDENT: All right. Look, I've not had an opportunity to consider whether that would be the applicable award, but you would obviously need to address under the relevant section why that would be the appropriate award in the absence of another award. Look, just in that context, I do note the agreement purports to cover the work in other states.

PN89

MR CLARE: There is some chance of an expansion, isn't there?

PN90

MR LEHMAN: I think that would be not during the term of this three years. Our contracts are - while we certainly don't want to rule that possibility out, like all people, the reality is that the job network contracts are three years set from 1 July 2003 to obviously the end of 2006, which would be a similar time period to this agreement. Given there is some leeway - I'm assuming this agreement starts from the date its certified, therefore given where we are now, we would be moving into the latter half of 2006, so you can never rule that we could be interstate, I suppose.

PN91

THE DEPUTY PRESIDENT: Look, I understand, the difficulty that arises, of course, is that if it is to apply in other states then - - -

PN92

MR CLARE: We should have a look at other agreements.

PN93

THE DEPUTY PRESIDENT: There would be other awards that would form the safety net which of course you have not considered because it is largely an academic question for the moment.

PN94

MR CLARE: Yes.

PN95

MR LEHMAN: Look, we can have a look at that, Deputy President. I don't see a problem but it is a matter of finding if there is other words that are more appropriate to cover the employees.

PN96

THE DEPUTY PRESIDENT: All right, well, perhaps then just take that on notice.

PN97

MR LEHMAN: Yes.

PN98

MR CLARE: Thank you.

PN99

THE DEPUTY PRESIDENT: I think you were about to launch off into the no disadvantage test when I interrupted you.

PN100

MR CLARE: As I said, the agreement does not result on a balance in the reduction of overall terms and conditions of employment and in fact there is some definite additional benefits, such as, there is 12 days sick- leave, as opposed to 10 - - -

PN101

MR LEHMAN: .....

PN102

MR CLARE: There is the ability to purchase additional annual leave, up to two weeks above the usual four weeks. There is a payment for fixed overtime, which is 5 per cent of their salary, is that correct.

PN103

MR LEHMAN: Base salary, yes.

PN104

MR CLARE: Yes, 5 per cent of the base salary. Overall, there is a greater potential for an increase - salary increase - salary increases, that is clear, isn't it.

PN105

MR LEHMAN: Yes, I think also the other thing is the employee assistance program which generally isn't covered by most base level awards, which is clearly important to some people at different stages in their lives. We consider that to be a positive thing.

PN106

THE DEPUTY PRESIDENT: Just in relation to the salaries, I understand there is a salary schedule that is appended at the back of the agreement and I also note in the summary of the agreement which is in exhibit A2, there is an indication of the application of the $17 per week increase and I understand the genesis of that. Then a further 2 per cent increase on 1 July 2004, 2 per cent 1 July 2005, and then the 5 per cent for administration staff because of the fixed overtime scheme.

PN107

Now, I'm not sure where those provisions are actually embraced in the agreement itself. Certainly, I understand that is what is reflected in the salary schedule - or I take it that is what is reflected in the salary schedule - - -

PN108

MR CLARE: Yes, that is in 10, yes, 10.

PN109

THE DEPUTY PRESIDENT: There is also as I understand it the potential adjustment of those salaries, both individually, but also on the collective during the life of the agreement, but I'm not quite sure how that is designed - whether that is designed to operate collectively, or only individually.

PN110

MR CLARE: I apologise, I'm not - we have tried to set a salary structure for the next three years effectively, yes, I apologise, I don't understand the question.

PN111

THE DEPUTY PRESIDENT: All right. Perhaps I can take you to the relevant part of the agreement.

PN112

MR CLARE: Yes.

PN113

THE DEPUTY PRESIDENT: It is in the no further claimants clause, clause 6.

PN114

MR LEHMAN: It is a concern, Deputy President that there might be wage increases under the award.

PN115

THE DEPUTY PRESIDENT: Yes.

PN116

MR LEHMAN: That might outweigh the increases under the agreement.

PN117

THE DEPUTY PRESIDENT: Yes, and obviously this arises in the context of the package, and I don't know whether you have done a spreadsheet of the salaries that are set out in clause 72.1, as against the award, in a sense taking into account that there are some differences. Obviously, the salary rate is a consolidated agreement or a loaded rate you might call it that has annual leave loading and other factors built into it, the overtime allowance, etcetera. Mr Clare, I'm not sure whether you have had an opportunity to view that.

PN118

MR CLARE: No, I haven't, no.

PN119

MR LEHMAN: I must admit again with the Clerks' SA Award ..... it was as simple as you know working up the leave loading and adding on that and then adding on to the fixed overtime, etcetera, etcetera, allowing for the $17 and the increase in each year by 2 per cent.

PN120

THE DEPUTY PRESIDENT: Right.

PN121

MR LEHMAN: So again with the non-administrative staff and the others, what we have tried to do is to get to a base point of above where we are currently, if you know what I mean, so there is some incentive to go across, but again given that there is no specific award to our knowledge to mirror that against. Having said that there is industry trends and we know that if we were around the mark we wouldn't have any staff if you know what I mean, because it is a very competitive environment the job network.

PN122

THE DEPUTY PRESIDENT: I understand.

PN123

MR CLARE: So our starting point there was, you know, within a structure that we currently have and obviously some level of increase but, again, when you have got 28 to 30 staff on individual contracts to bring them into one document it is not an easy thing to do. The aim of this document is that no-one is disadvantaged and hopefully everyone has got an increase, if you know what I mean, like and that would generally be the case, so there would be no circumstance here where someone goes backwards coming into this agreement.

PN124

THE DEPUTY PRESIDENT: So in relation to the administration staff the intent there is to reflect the classifications?

PN125

MR CLARE: Yes. The classifications that are currently within the Clerks' SA Award to take them - annualise them - add in the standard annual leave loading into that and then to add the $17 which we anticipated would come in and then to multiply that all by 5 per cent for the fixed overtime.

PN126

THE DEPUTY PRESIDENT: Then the two by the 2 per cent adjustments - - -

PN127

MR CLARE: Yes - annually - - -

PN128

THE DEPUTY PRESIDENT: - - - which are contemplated in the agreement.

PN129

MR CLARE: That's right, on top of the whole lot.

PN130

THE DEPUTY PRESIDENT: Yes.

PN131

MR CLARE: Does that answer your question.

PN132

THE DEPUTY PRESIDENT: I think it does.

PN133

MR LEHMAN: Yes.

PN134

MR CLARE: Yes, fine.

PN135

THE DEPUTY PRESIDENT: Yes. So in that context - in relation to the no further claims that literally is only to individual salaries, rather than the collective salaries?

PN136

MR CLARE: That is right and that is to stop claims for wage increases which they are getting paid well above anyway. So for example if there was another wage increase and they are already well above that they wouldn't be able to claim that wage increase.

PN137

MR LEHMAN: Then again we are on fixed contracts ourselves. The aim of this document was to be transparent and up front. If someone starts with us on 1 July 2003 they know where they stand until the end of the Job Network contract. Therefore they can make an informed decision on whether they want to work for this entity during that period. Now, while that is not going to preclude them from leaving I suppose at least they and we are going in with our eyes open. It is certainly the intent of that.

PN138

THE DEPUTY PRESIDENT: I understand.

PN139

MR LEHMAN: Yes.

PN140

THE DEPUTY PRESIDENT: Thank you.

PN141

MR CLARE: Just some further matters, Deputy President. There's a dispute resolution procedure at clause 71 of the agreement concerned.

PN142

THE DEPUTY PRESIDENT: Yes, just in relation to that clause I think it refers, in the event of a dispute or a disagreement, to mediation.

PN143

MR CLARE: That is right.

PN144

THE DEPUTY PRESIDENT: What are the obligations if any upon the employees to fund the mediation process?

PN145

MR CLARE: I don't know, Deputy President. What would - - -

PN146

MR LEHMAN: Look from our point of view I'm not sure what is in there because clearly I don't write those type of clauses but I think from our point of view we want a harmonious work environment. For 5 years we have supplied an occupational psychologist for employees. We are hardly going to walk out - I know that that is no, unless it is writing - but, you know, $400 bucks an hour for a psyche, I don't think we are going to baulk at having someone paid to mediate our entire staff walking out the door. Now, that would be to a reasonable level clearly. I mean, yes, look I am more than happy to amend that. I think that - - -

PN147

MR CLARE: Well, we can give an undertaking.

PN148

MR LEHMAN: Look we can definitely give an undertaking that we would pay for mediation in that situation without any doubt at all.

PN149

THE DEPUTY PRESIDENT: Yes. Look I raise it because, as you correctly infer, I have to deal with the agreement based on what is said.

PN150

MR CLARE: Absolutely, yes. I've got no issues with that and I think again I'm not sure what I have to do to do that. I think also being realistic when you are such an intimate organisation who has had minimal staff turnover we probably aren't experienced in a lot of the negativities of the industrial relations environment and therefore we have put a very good in good faith document on the board - well, what we believe is, and the hundred per cent vote certainly indicates that the other staff believe that as well.

PN151

THE DEPUTY PRESIDENT: Indeed.

PN152

MR CLARE: But we are more than happy to tidy up any ambiguities within it.

PN153

MR LEHMAN: Well, we certainly could give an undertaking that those costs would be borne by the company that are reasonable.

PN154

MR CLARE: Absolutely, yes.

PN155

THE DEPUTY PRESIDENT: Now, the issue that flows from that is that 71.2 indicates what happens if the mediation result is not accepted. Either party may seek to have the matter resolved by any available legal process. The difficulty that arises from that in that context is that section 170LW of the Act contemplates that the parties themselves will determine what legal process is to apply and in particular whether the Commission will be exercising any powers of conciliation and/or arbitration in the event that a dispute is not resolved through the earlier process.

PN156

Look I accept entirely that this is probably an academic concept. Hopefully it is a completely academic concept but the reality is the Act requires you to have a disputes procedure, and various Full Bench decisions of this Commission have required single members to ensure that that procedure is appropriate and reasonable, albeit hopefully it will never be used.

PN157

MR CLARE: No. That is understandable, yes.

PN158

THE DEPUTY PRESIDENT: So in that context I am not sure whether the intent of the disputes procedure is that there is in fact access to conciliation and/or arbitration by the Commission in the event that the earlier steps in the procedure don't resolve a matter because, as I said, section 170LW appears to give the entire parameters to the parties to agree on that and if it is not clear it is arguable that there isn't that access whether that was in fact the intention or not. So I appreciate that is a reasonably technical issue but you might want to reflect that on a little further.

PN159

MR LEHMAN: Yes. I anticipated that, Deputy President, because the Act does seem to anticipate a clause which will give you access to - the parties will be able to decide to go to the Commission.

PN160

THE DEPUTY PRESIDENT: Or not decide as the case may be.

PN161

MR LEHMAN: Or not decide.

PN162

THE DEPUTY PRESIDENT: The difficult I've got here is it is not clear what was decided, what was intended. I am not sure whether the intent of the disputes procedure is that there is, in fact, access to conciliation and/or arbitration by the Commission in the event that the earlier steps in the procedure do not resolve a matter because, as I said, six months in the LW appears to give the entire parameters to the parties to agree on that and if it is not clear, A, there isn't that access, whether that was, in fact, the intention or not, so, Mr Clare, I appreciate that is a reasonably technical issue but you might want to reflect on that a little further.

PN163

MR CLARE: Look, I anticipated that, Deputy President, because the Act does seem to anticipate a clause which will give you access to - the parties will be able to decide to go to the Commission.

PN164

THE DEPUTY PRESIDENT: Or not decide, as the case may be. The difficulty I've got here is it is not clear what was decided, what was intended.

PN165

MR CLARE: Basically either party can make the decision themselves what they are going to do.

PN166

THE DEPUTY PRESIDENT: Anything else, Mr Clare?

PN167

MR CLARE: The only final point I think, Deputy President, was that there is, I think you have heard, a nominal expiry date, clause 2, for three years from the date of certification.

PN168

THE DEPUTY PRESIDENT: Ms Garrard, is there anything you waned to say either about the process leading to this point, or any of the points of clarification that have been raised about the operation of the agreement?

PN169

MS GARRARD: Well, I felt very informed about what the certified agreement was about, having received a copy with an offer of employment in May, and I am aware that other staff members received copies with their offers of employment. We had notification of the vote on 12 June and I would - whilst I know that that was when I received it we received it at the same time, and we felt fully informed about what the conditions of the agreement were. There was minimal discussion because we felt comfortable about it knowing that if it didn't reach our expectations we would go elsewhere and I guess there's always ..... referred to is a very incestuous industry, our industry.

PN170

THE DEPUTY PRESIDENT: It is a very competitive market, I understand.

PN171

MS GARRARD: Very competitive and there are a number of clauses that have already been made which were to our advantage and we have all come from organisations that paid well under those conditions. So the general feeling is that we are very happy with the process knowing that it was for a period of time and that contract was three years anyway - long services contract - so we felt very comfortable about the way we did it.

PN172

THE DEPUTY PRESIDENT: Good, thank you. Ms Warren, I take it you have heard all that?

PN173

MS WARREN: I did.

PN174

THE DEPUTY PRESIDENT: Is there anything that you would like to contribute from your perspective either again about the process or about the clarification of the proposed agreement?

PN175

MS WARREN: It was probably the same for everybody at Complete SA I dare say.

PN176

THE DEPUTY PRESIDENT: Perhaps you can repeat that again for us.

PN177

MR LEHMANN: Could you speak up, please.

PN178

MS WARREN: Sorry, it would have been the same for everybody at Complete SA. We got the initial draft on 11 April and then I think we had lots of notice to decide whether we wanted vote yes or no.

PN179

THE DEPUTY PRESIDENT: In terms of the clarification of the intent of the agreement are you comfortable with what I have been told this morning?

PN180

MS WARREN: Yes, I am.

PN181

THE DEPUTY PRESIDENT: Is there anything further you wanted to add?

PN182

MS WARREN: No, I don't think so.

PN183

THE DEPUTY PRESIDENT: Thank you. Anything further?

PN184

MR LEHMANN: Not for me, I think all I reiterate, we just want a transparent document. We want the thing open. Employment contracts have served their purpose but it sometimes causes as much problems as anything else. I think it is just - we want something that is open and transparent for three years. We believe we have come up with a good document and while there may be some technicalities in the Act we are more than happy to make any amendments that are required in dispute resolutions and whatever else, if you know what I mean. So, that is all I have got to say.

PN185

THE DEPUTY PRESIDENT: Thank you. Anything further, Mr Clare?

PN186

MR CLARE: No, nothing further, Deputy President.

PN187

THE DEPUTY PRESIDENT: Look, there are a number of issues that I raised, some of which have been dealt with already, in particular the view that I have formed that this is a single business for present purposes. There are, however, a number of other matters that I need to give further consideration to, including whether or not there should be an application made pursuant to section 170XF for the designation of an award for those employees that are not presently covered by an award.

PN188

Secondly, as part of that I will have to consider further the issue about the territorial application of the agreement in that that may well raise a whole series of other issues which have not been contemplated and may not be terribly useful for the parties, but that is something that the parties might want to discuss with Mr Clare. Certainly, and subject of course to the designation of an award for all employees I will need to consider the entire package for the purpose of the no disadvantage test in light of what has been put today.

PN189

There are a number of technical matters that have arisen, including those associated with the dispute resolution procedure. So in that context what I propose to do is to reserve a decision. I think, however, Mr Clare I have raised a number of matters with you for the first time and, in particular, I think it would be appropriate for you to confirm your instructions on a number of those issues.

PN190

MR CLARE: Yes, sir.

PN191

THE DEPUTY PRESIDENT: What I will do is I will - whilst I will reserve the decision I will grant liberty to you to supply me supplementary submissions within seven days.

PN192

MR CLARE: Thank you.

PN193

THE DEPUTY PRESIDENT: I indicate that I will then deal with the matter based on what you have put. If I have continuing issues that I need to consider - and of course I should also add to the list of those matters I need to consider is that process issue associated with employees who joined the process during the course of that 14 day notice period - but I will consider the matter based on what has been put today and any further submissions that you make, Mr Clare.

PN194

MR CLARE: Certainly.

PN195

THE DEPUTY PRESIDENT: You will appreciate that I have an obligation under the Act that if I have continuing concerns about compliance with the Act I am obliged to raise them with you and I will do so as early and as constructively as I can and give you an opportunity to also address any continuing concerns in that light. I will, given that you are going to confirm a number of intentions, Mr Clare, I also grant you liberty to apply in the event that you wish to put something more comprehensive to the Commission in person. The matter will be adjourned on that basis and I will give you an answer at the earliest opportunity.

ADJOURNED INDEFINITELY [11.30am]

PN196

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #A1 TWO NOTICES OF INTENTION TO MAKE A CERTIFIED AGREEMENT SERVED ON 06/06/2003 PN44
EXHIBIT #A2 SUMMARY OF KEY FEATURES FORWARDED TO EMPLOYEES WITH EXHIBIT #A2 PN44