AG2003/6679, Transcript of Proceedings [2003] AIRCTrans 3921 (8 September 2003)

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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT HARRISON

AG2003/6679

APPLICATION FOR CERTIFICATION
OF AGREEMENT

Application under section 170LK of the Act
by Venue Industry Professionals Pty Limited
and VIPeople for certification of the Venue
Industry Professionals Certified Agreement 2003

SYDNEY

10.07 AM, THURSDAY, 21 AUGUST 2003

PN1

THE SENIOR DEPUTY PRESIDENT: May I have appearances in this matter.

PN2

MR A. DUFFY: I am the Managing Director of Venue Industry Professionals.

PN3

THE SENIOR DEPUTY PRESIDENT: You have with you in court today two of the employees proposed to be covered by this agreement?

PN4

MR DUFFY: That is correct. We have MS K. BARBOUR and MR P. TYLER representing the staff.

PN5

THE SENIOR DEPUTY PRESIDENT: Thank you. I have a number of questions that relate to the application and the statutory declarations but is there anything you would like to say before I raise them with you?

PN6

MR DUFFY: Yes, I would. If I could by way of background just provide you with some information in relation to my company. As managing director we set up this company about two years ago with the ultimate view of providing a staffing agency for venues and events which happens to be my background and expertise. A couple of years ago we set this up and about 12 months ago we were given the opportunity to pitch for and win some business which is a relatively minor contract and I'm running that at the moment by way of outsourcing my staff to another agency.

PN7

I'm fairly new at this and I would like the opportunity to expand my business and the only way that I can do that is to have my own enterprise agreement and establish my own staff and be competitive against some of the big agencies that currently exist. By way of base, I used, as I stated in the application, the Theatrical Employees Recreation & Leisure Industry State Award which I'm very familiar with and it forms the basis for most casual staff agreements within our industry at this stage. The two key issues for me are obviously the rates and the minimum call out periods which allow me to be a competitor in the industry. The process, which is fairly clear we followed was to establish a working party, remembering that at this stage I don't have any direct employees apart from myself and my wife as directors of the company.

PN8

THE SENIOR DEPUTY PRESIDENT: Your statutory declaration is misleading then, isn't it? I thought there were said to be 50 employees.

PN9

MR DUFFY: The 50 employees, their employment is dependent on the success of this award so I put in there that that would be the number of employees I would have should this be registered.

PN10

THE SENIOR DEPUTY PRESIDENT: We will have to return to that. Yes, continue.

PN11

MR DUFFY: It could be slightly misleading. I took advice from people as to how to fill that out.

PN12

THE SENIOR DEPUTY PRESIDENT: You might have been given poor advice but we'll return to that.

PN13

MR DUFFY: Just to finish, by way of process we had four people whose employment is directly related to the success or otherwise of this agreement. They are signatories to the agreement and two of them are here with me today. We signed the agreement on 6 July 2003. That's all I have to say. Thank you.

PN14

THE SENIOR DEPUTY PRESIDENT: When you mentioned that the rates and minimum call out periods are the two keys issues for you, what do you consider the minimum call out periods to be in the award that you used for the purposes of the no disadvantage test?

PN15

MR DUFFY: That is the Theatrical Employees Award?

PN16

THE SENIOR DEPUTY PRESIDENT: Yes.

PN17

MR DUFFY: I'm just trying to find it in the award but as far as I understand it it's three hours.

PN18

THE SENIOR DEPUTY PRESIDENT: Yes. In your agreement at clause 9(1) you provide that:

PN19

Each employee when engaged to work a shift will be offered not less than three hours work.

PN20

MR DUFFY: Correct.

PN21

THE SENIOR DEPUTY PRESIDENT: Presumably offered and paid not less than three hours work.

PN22

MR DUFFY: Correct.

PN23

THE SENIOR DEPUTY PRESIDENT: What's the difference between that clause and the award?

PN24

MR DUFFY: There is no difference. I'm just stating that it's a key point when trying to pitch for business.

PN25

THE SENIOR DEPUTY PRESIDENT: Yes, I understand that. Firstly, I want to ask you some questions that relate to your statutory declaration. What are the types of events that you have already won and are hoping to pitch for during the proposed life of this agreement, namely in the next three years?

PN26

MR DUFFY: My current one and only formal arrangement is with Parramatta Stadium, so the basis of it is that they outsource all of their staff in its entirety which is a growing trend within the venue industry. I have won that work and now that I have an established organisation I hope to pitch for more of that work with other venues. That's the basis of it. There are also occasionally some one off events. For instance, this year we did the World Cup cycling event at the Olympic Velodrome which was a three day event. We provided some staff for that as well.

PN27

THE SENIOR DEPUTY PRESIDENT: The sorts of people that are going to be covered by this enterprise bargaining agreement, you've given consideration to whether they're the same sorts of people covered by the Theatrical Employees Award, have you?

PN28

MR DUFFY: Indeed, and in researching the types of people the venues and the event industry employ, it's no different to myself. They're made up of three predominant groups. One is retirees of which Mr Tyler is one of those, we have a large group of uni students, and also another large group of people that we use, use this casual work to supplement permanent income.

PN29

THE SENIOR DEPUTY PRESIDENT: I understand that. What I'm more interested in is the types of classifications that are covered by the classification structure in clause 5. You have some four levels and you've identified certain classifications, certain sellers, ushers, labourers, clerical staff. I'm just wondering whether you've given consideration to whether those classifications are the types of classifications covered by the Theatrical Employees Award.

PN30

MR DUFFY: They are indeed. The biggest difference I guess is that with that Theatrical Employees Agreement there are five rates. We have eliminated one of them on the basis that we believe it's not necessary, and we've researched other agreements to indicate that they range from four to five, but the classifications and skill levels required for each are much the same within all agreements in the industry.

PN31

THE SENIOR DEPUTY PRESIDENT: Yes. Do you engage any security staff?

PN32

MR DUFFY: No, we don't.

PN33

THE SENIOR DEPUTY PRESIDENT: Cleaning staff?

PN34

MR DUFFY: No, we don't.

PN35

THE SENIOR DEPUTY PRESIDENT: In clauses 5.4 and 5.6 of your statutory declaration you refer to the notice that the Act requires to be provided to your employees. Do you have a copy of that notice in your possession?

PN36

MR DUFFY: Could you repeat the clauses, sorry?

PN37

THE SENIOR DEPUTY PRESIDENT: In clauses 5.4 and 5.6 of your statutory declaration you refer to the written notice that employees received. May I have a copy of that notice?

PN38

MR DUFFY: I don't believe I do have a copy. I can look through my notes. I don't believe I do.

PN39

THE SENIOR DEPUTY PRESIDENT: It is a statutory and mandatory requirement that the notice issue at a certain time by reference to the agreement being provided to employees, and that it contain certain provisions within it that the Act demands must be contained.

PN40

MR DUFFY: I take it I didn't submit that with the application?

PN41

THE SENIOR DEPUTY PRESIDENT: I don't think so. I looked through all the documents this morning and I did not see it, hence the note to myself to ask for that letter or notice. The Act describes it as a notice.

PN42

MR DUFFY: There certainly is a notice and it was sent to the relevant group and it stated that they have the - we chose a date and they had notice for that and that certainly had the opportunity to invite any representatives along.

PN43

THE SENIOR DEPUTY PRESIDENT: Yes. I need a copy of that notice.

PN44

MR DUFFY: I don't have it with me, I'm sorry.

PN45

THE SENIOR DEPUTY PRESIDENT: It was provided only to four employees, I take it, not to 50 employees?

PN46

MR DUFFY: That's correct. There was a representative group chosen on the basis that none of them are directly my employees.

PN47

THE SENIOR DEPUTY PRESIDENT: You see, that's an additional problem. Either they're your employees and the statutory declaration addresses your employees and the statutory requirements or they're not. If they're not your employees I think you should take some further advice before you answer any of my questions because my questions do relate to your statutory declaration, and you would be aware that you should be very careful about answering questions which may indicate your statutory declaration is erroneous. Do you want to take some advice before I ask you some further questions?

PN48

MR DUFFY: Sure.

PN49

THE SENIOR DEPUTY PRESIDENT: I think you should. Clearly on what you've told me so far there are a number of concerns I would have about the statutory declaration. You do not have 50 employees. In your statutory declaration you state that the total number of employees covered by the agreement is 50. You have also indicated how that total number is made up, 60 per cent women, 60 per cent non-English, 100 per cent casual. I cannot understand how that could have been answered in that way if now you tell me they're fictitious people who you suspect might be hired but are not currently hired. That clearly is misleading. You should take advice very soon about whether you wish to continue to rely on the statutory declaration, or might give consideration to withdrawing it.

PN50

The notice I require, so it will be necessary for you to give me a copy of that notice. In your statutory declaration you have referred to the state award, that is the relevant award against which the no disadvantage test has been undertaken. The state award is the Theatrical Employees Recreation & Leisure Industry State Award. In clause 6.4 there is no identification of the provisions of that award that are not met. Perhaps I've put that clumsily. Namely, you do not identify anywhere in your statutory declaration the clauses of the enterprise bargaining agreement that are less than, namely would result in a lesser entitlement to employees than they would have otherwise been entitled under the award.

PN51

It is clear to me there are such clauses and one needs go no further than the ALI wage rate. The next matter is insignificant. It is that had the agreement been certified today it could not have remained in operation until 1 September 2006 because that is longer than three years, but that would have been the least of your problems because I could have then just nominated 1 September 2003 and that would have got over that problem.

PN52

I now refer to your enterprise bargaining agreement. In clause 3 you refer to a federal award. It is clearly an error to put in a certified agreement that is provided to employees the fact that there seems to be some federal award and that they are entitled to conditions of employment contained in a federal award other than where the agreement deals with a matter. Everything you have said so far has not suggested there is in existence any federal award. If there is you need also to think about your statutory declaration and identify that federal award. I have proceeded on the basis the award you're talking about is the state award. I do not understand clause 3 of the enterprise bargaining agreement.

PN53

The rates that you have provided for in clause 8 of the enterprise bargaining agreement are expressed as rates per hour. They are to be paid in lieu of any award rate - I don't know which award you're talking about but I'm assuming for the time being any award is the state award - and they are to be paid for all purposes, Saturday, Sunday, public holidays, shift and penalty rates. They fall below the relevant state award by a long shot. I cannot understand how it could be proposed that this enterprise bargaining agreement passes the no disadvantage test. If it was to succeed at all and get over all of the other problems it has, it would only pass under the Act the public interest test. It is highly unlikely to pass the no disadvantage test.

PN54

I strongly recommend you take some advice and I strongly recommend you consider withdrawing this application and starting again. The Commission now adjourns.

ADJOURNED INDEFINITELY [10.21am]