AG2003/7113, Transcript of Proceedings [2003] AIRCTrans 4080 (16 September 2003)

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TRANSCRIPT OF PROCEEDINGS


O/N 4437
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER MANSFIELD

AG2003/7113

APPLICATION FOR CERTIFICATION
OF AGREEMENT

Application under section 170LJ of the Act
by Australian Liquor, Hospitality and
Miscellaneous Workers Union-Victorian Branch
and Another for certification of the ALHMWU/Eski
Cleaning Services (Victoria) Certified Agreement
2003

MELBOURNE

11.04 AM, FRIDAY, 29 AUGUST 2003

PN1

MS R. FRENZEL: I appear for the LHMU in both matters.

PN2

MR S. WILLIAMS: I appear for Eski Cleaning Services.

PN3

THE COMMISSIONER: Ms Frenzel, this is an application by the Australian Liquor, Hospitality and Miscellaneous Workers Union for a certification of 170LL greenfields agreement with Eski Cleaning Services. Would you like to take us through it, please.

PN4

MS FRENZEL: By all means, Commissioner. Commissioner, Eski Cleaning Services are one of the major players in the Victorian contract cleaning industry and they are bound by the terms of the Building Services Victoria Award 2003. Now, their traditional area of work has been the area of work covered by the Building Services Award, that is, the cleaning of buildings and it has not been their traditional area of work for events cleaning as such.

PN5

Now, Eski Cleaning Services were able to secure a contract for the cleaning of the Royal Melbourne Showgrounds, work which is not covered by the scope of the Building Services Award but nonetheless we say the Building Services Award because it is the only contract cleaning industry award operating in Victoria is the correct award against which the no disadvantage test should be measured in this particular instance.

PN6

The proposed work of cleaning at events at Melbourne Showgrounds is different to the extent that some of it will involve outdoor work, although the Building Services Award does have provision, for example, for a special allowance at Queen Victoria Markets which is also outdoor work. So there are two parts firstly to my opening. The first one is that with respect to the designated award it is the only award which operates in Victoria. Eski is already bound by it in any event and the award has been drafted bearing in mind the rates and conditions contained with that award.

PN7

So we say for the purposes of designating the award that is the appropriate award to be used for the purposes of looking at the agreement itself. Now, the agreement itself deals with event cleaning and as I say, the scope clause of the building services to which Eski is respondent - let me say this, the scope clause is broad to the extent that it says this:

PN8

This award applies to the employment of employees being members or not of the ALHMWU -

PN9

I will abbreviate that -

PN10

engaged in or in connection with the industries and/or industrial disputes of contract cleaning within the State of Victoria.

PN11

So the scope is most probably broad enough although it hasn't been applied that way traditionally and that is because traditionally respondents to this award have not sought to enter into events cleaning. That is not to say they are not going to do it in the future though. Having said that, Eski Cleaning Services came to us and they said, well, we want an agreement with the LHMU, it will be new work for us, completely new employment of people, we are not going to employ - and this is one question I pinned Eski down on, they are not going to employ existing part time cleaners they have in buildings to do this work. The reason for that is because those part time cleaners already have jobs.

PN12

So it is going to be an agreement which covers the engagement of casuals at Royal Melbourne Showgrounds for event cleaning. Now, event cleaning is defined as setting up for the event, in other words, when the maintenance people go in and start building scaffolding and things, the Eski employees will clean up after them, the cleaning of the event itself, during the event and then when the event is dismantled the agreement will operate as well. The union and the company struck a rate which is 50 per cent above the base rate in the award.

PN13

The casual loading in the award is 25 per cent. My understanding from Eski is that 70 per cent of the work when the event is being erected and dismantled will be day work. Under normal circumstances a casual employee under the award would get 125 per cent of the rate, base rate plus 25 per cent casual loading. For that time worked they will get 150 per cent of the rate. There will be, and we can only use the Royal Melbourne Show as an example at this point in time but I will come back to that in one moment as well, but with the Royal Melbourne Show these employees will be required to work five weeks and on average they will work two weekends.

PN14

Now, we say that the additional 25 per cent loading on the hourly rate compensates for the time and a half on Saturday and double time on Sunday given that they are only working two weekends out of five and that is what our mathematics clearly indicate to us. One thing I was mindful of, particularly with greenfields agreements because I do have a little bit of a problem with my principle terms but that is neither here nor there, was that we were mindful to ensure that the agreement provided that no employee shall be disadvantaged by the operation of the agreement and that is contained in clause 6, relationship to parent award.

PN15

What that means, and the parties want to put this very clearly to you, Commissioner, is that if perchance at the end of five weeks when an employee may have worked three weekends rather than foreseen two, we will make sure that employees gets the rates that employee would have got if they had have been covered by the award at the time. That is the intention of that. But we don't see that happening, so long as everything goes according to plan with Esky we don't see that happening. But having said that, the safeguard is built in there to ensure that nobody is disadvantaged as a consequence of the operation of the agreement.

PN16

The other change is that we have provided for a roster cycle of up to five weeks. The roster provides for a roster cycle of up to four. That once again caters for the specialist nature of the work at the Royal Melbourne Show. I might indicate that normally under the Building Services Award and in buildings around Melbourne and shopping centres and the like it is normally a weekly or a fortnightly roster. But given that this is a specialist event and most of these things are - the Grand Prix operates the same way only it is a nine week roster, so there was a flexibility built in there, but once again we say that the time and a half rate that was struck more than compensates for the fact that even if they worked a little bit of overtime it would be paid at overtime in any event and that is time and a half for the first two hours and double time thereafter.

PN17

We have been very careful also to ensure that the employees can only work up to 10 ordinary hours per day. That is as per the award in the hours clause and we specify directly that any hours worked in excess of that span will be paid for at the relevant overtime rates under the award. The agreement also provides for a dispute settlement procedure at clause 11 and it does the Commission jurisdiction to hear and determine any matters that arise, or disputes arising out of the operation of the EBA. Now, I seek to rely - - -

PN18

THE COMMISSIONER: Excuse me. Mary, tell them to be quite, please.

PN19

MS FRENZEL: Thank you. I seek to rely upon the stat dec sworn by Mr Brian Daly on the 26th, I think it was - sorry, 27 August and indicate to the Commission that it is our respectful submission this is a new part of the business for Eski. This not something that has been concocted between the employer and the union to disadvantage people to try and, if you like, pull a swiftie. It is new business. It is something that clearly Eski hasn't done before and neither, I might add, have any of the other cleaning majors that deal with have done before.

PN20

For example, and the Grand Prix Clean Event has that contract. Clean Event has the contract at Moonee Valley Racecourse. Clean Event has the contract for cleaning at what is commonly known as Jeff's Shed. So this is work which is a new business for Eski and on that basis we say that the requirements of the Act in certifying a greenfields agreement have been complied with by the parties. On that basis, Commissioner, I commend the application.

PN21

THE COMMISSIONER: Just one small question, Ms Frenzel, and that is clause 9.1 refers to rates of pay and classifications and in the third line it refers to the rates specified in clause 9.1. I don't specified in clause 9.1. Should that read clause 9.2?

PN22

MS FRENZEL: Yes, it should, Commissioner.

PN23

THE COMMISSIONER: So should we just change that 9.1 to 9.2?

PN24

MS FRENZEL: Yes, thank you.

PN25

THE COMMISSIONER: Good. Thank you, Ms Frenzel. Mr Williams, do you have submissions you wish to put on the record in addition to those of Ms Frenzel?

PN26

MR WILLIAMS: Commissioner, no, I think Ms Frenzel has covered everything that we have agreed to and in line with where we want with the EB. Thank you.

PN27

THE COMMISSIONER: Good, thank you, Mr Williams. I propose to certify the agreement, taking into account the statutory declarations that have been received from the parties and the submissions that have been put on the record this morning. In certifying it though I wish to go a little bit further because there are some provisions in the agreement which in other cases may have been questioned in this Commission and I would like to make a statement on the record to refer to the basis on which on which I am certifying the agreement.

PN28

This agreement is between Eski Cleaning Services and the Australian Liquor, Hospitality and Miscellaneous Workers Union, commonly referred to as the LHMU. It relates to persons employed to undertake cleaning at the Royal Melbourne Showgrounds. Among other things, it provides for a union commitment to promote a harmonious and productive workplace environment, right of access for officers of the union to the workplace to observe the performance of work and to talk to employees, payroll deduction of union fees and opportunities for the union to facilitate employees becoming union members.

PN29

To certify an enterprise agreement the Commission needs to be satisfied that its provisions are concerned with the employment relationship between the employer and the employee. In some instances there have been questions asked by this Commission in relation to clauses such as right of entry and clauses such as facilitation of individuals becoming union members. In my view the right of employees and employers and to organise and negotiate collectively through their associations, chambers, councils and unions has been recognised and adopted as legally binding in Australia through the ratification of International Labour Organisation Conventions numbers 87, re Freedom of Association and 98, re the Right to Organise and Bargain Collectively. Article 2 of Convention 87 provides as follows:

PN30

Workers and employers without distinction whatsoever shall have the right to establish, and subject only to the rules of the organisation concerned, to join organisations of their own choosing without previous authorisation.

PN31

Articles 3 and 4 of ILO Convention 98 provide as follows, article 3 states:

PN32

Machinery appropriate to national conditions shall be established where necessary for the purpose of ensuring respect for the right to organise as defined in the preceding articles.

PN33

And article 4 states:

PN34

Measures appropriate to national conditions shall be taken where necessary to encourage and promote the full development and utilisation of machinery for voluntary negotiation between employers and employer's organisations and workers organisations with a view to the regulation of terms and conditions of employment by means of collective agreements.

PN35

These provisions of conventions ratified by the Australian Government in 1973 clearly envisage that employers and employees will both have the right to establish and will act to establish organisations to represent their interests in the workplace. Having done so over the last 150 years in Australia and especially so since the ratification of ILO Conventions 87 and 98, it follows in my view that matters such as the ability of employees to meet with officers of their own union in the workplace or elsewhere, for an employer to commit to the deduction of union dues and agree to pass those moneys onto the employees union, and for the employer to agree to make available opportunities to facilitate employees becoming aware that a union exists which can represent their collective interests are all matters which are concerned with the employment relationship between the employer and the employee.

PN36

The employment relationship should not be based on a narrow concept of master/servant as some might argue. It should recognise rights of both parties to represent their specific interests in terms of matters such as workplace efficiency and profitability, job security, remuneration levels, occupational health and safety and employment conditions. To enable both the employer and the employee to have an effective and balanced relationship references in employment agreements such as the one before us today to a union presence in the workplace, to a right of entry and facilitating employees to become union members are in my opinion clearly part of the employment relationship.

PN37

As I said earlier, the agreement reached between the parties to this matter is certified as sought in the application under section 170LL of the Act. This matter is now adjourned.

ADJOURNED INDEFINITELY [11.20am]