AG2002/385, Transcript of Proceedings [2003] AIRCTrans 409 (7 February 2003)

AUSCRIPT PTY LTD
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TRANSCRIPT OF PROCEEDINGS

O/N VT1428
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT LACY

AG2002/385

APPLICATION FOR CERTIFICATION
OF AGREEMENT

Application under section 170LK of the Act
by Olten Pty Limited trading as MSA Security
for certification of the MSA Security
(Security Officers) Certified Agreement 2002

MELBOURNE

2.10 PM, FRIDAY, 24 JANUARY 2003

Continued from 16.1.03 in Perth

THIS HEARING WAS CONDUCTED BY VIDEO CONFERENCE
IN MELBOURNE

PN224

MR D. CLARKE: I appear for Olten Pty Ltd.

PN225

THE SENIOR DEPUTY PRESIDENT: Yes. Could I just indicate to the parties, it might be as well if you just remain seated because when you stand up I can't see your - the top of your body. Yes.

PN226

MS F. BENNETT: I appear for the Australian Liquor Hospitality and Miscellaneous Workers' Union.

PN227

THE SENIOR DEPUTY PRESIDENT: Yes, thank you, Ms Bennett. Just before we begin I should indicate that I have received from the Australian Liquor Hospitality and Miscellaneous Workers' Union a statutory declaration and some written submissions regarding the reasons why the name of the individual employee could not be disclosed. Ms Bennett, I will give you leave at this stage to intervene in the proceedings based on the information that you have provided to me. As I understand it, your purpose for intervention is simply to be made a party to the agreement, is that right?

PN228

MS BENNETT: Correct sir.

PN229

THE SENIOR DEPUTY PRESIDENT: Yes. Well I won't decide that question at this stage. There are a couple of matters I want to ask you, Mr Clarke about the agreement. I have examined it in some more detail in the context of the rosters that you provided to me and in the context of the undertaking that the company is prepared to give and what I wanted to ask you about first of all is the issue of rostered hours and penalty rates in relation to shifts and so forth. Do you have a copy of the award and a copy of the proposed agreement there Mr Clarke?

PN230

MR CLARKE: Yes, yes I do, your Honour.

PN231

THE SENIOR DEPUTY PRESIDENT: Yes.

PN232

MR CLARKE: I thought the matter pertaining to the statutory declaration was going to be dealt with first.

PN233

THE SENIOR DEPUTY PRESIDENT: I will come to that later on. I will deal first of all with this matter because I have granted leave for the parties to intervene at this stage. I haven't yet determined the issue of whether they will be made a party. Now sorry, could you just come to the part of the award, specifically clause 13 in the award. I am sorry, clause 13 in the agreement it is - I misled you there. Just bear with me a moment. It is actually clause 13.4 in the award that I want to go to as well and it is clause 21.4 in the agreement, so I will take you to that. Can you see in the award in clause 13.4 there is provision there for a 15 per cent shift loading for weekday afternoons, do you see that?

PN234

MR CLARKE: So it is 21.4.3, your Honour, is that right, in the award?

PN235

THE SENIOR DEPUTY PRESIDENT: In the agreement, yes. But what I am talking about is clause 13.4 in the award and look at clause 21.4.3 in the agreement. Do you have that?

PN236

MR CLARKE: Yes, I do, your Honour.

PN237

THE SENIOR DEPUTY PRESIDENT: Right. Well the agreement doesn't allow any shift loading for weekday afternoons whereas the award does so it is 15 per cent shift loading under the award for afternoon and night shifts, right, but no equivalent provision on weekdays under the agreement. So the agreement in those circumstances must be 15 per cent - or must have been 15 per cent less on shift loadings for weekdays. Is that right?

PN238

MR CLARKE: That is how it would read, your Honour, yes, I certainly see that now.

PN239

THE SENIOR DEPUTY PRESIDENT: All right.

PN240

MR CLARKE: There is a 15 and 25 as compared with the 50 per cent and 75 per cent.

PN241

THE SENIOR DEPUTY PRESIDENT: Well yes, but you - if we go - in clause 21.4 - sorry, 21.4.3.2, or (ii) there is a 15 per cent loading for a penalty shift - sorry, shift loading for night shift Monday to Friday but under the award the night shift penalty rate is 25 per cent.

PN242

MR CLARKE: No - yes, the night shift allowance of 25 per cent - - -

PN243

THE SENIOR DEPUTY PRESIDENT: Under the award?

PN244

MR CLARKE: Under the award.

PN245

THE SENIOR DEPUTY PRESIDENT: And 15 per cent under the agreement?

PN246

MR CLARKE: Yes.

PN247

THE SENIOR DEPUTY PRESIDENT: Right. Now if we could go to clause 16 of the award and clause 21.1 of the agreement, this is in relation to overtime, you will see that under clause 16, it is double time from the start of overtime after a continuous shift whereas under clause 21.1(b)(ii) of the agreement, it is double time only after two hours, or two hours after -

PN248

sorry, yes - two hours after the conclusion of the continuous shift.

PN249

MR CLARKE: Yes your Honour. I see the difference between the overtime component of the award and the agreement in that regard. I don't - the agreement certainly doesn't highlight the aspect of the tenuous shift.

PN250

THE SENIOR DEPUTY PRESIDENT: All right. Now in relation to public holidays, clause 16.5 of the award, overtime worked on a Sunday must be paid at the - overtime worked on a public holiday must be paid at the rate of double time and one half - double time and half. Under 21.1(b)(ii) of the agreement it is only paid at double time.

PN251

MR CLARKE: 20.3 of the award and 21.1(b)(ii) - - -

PN252

THE SENIOR DEPUTY PRESIDENT: Yes.

PN253

MR CLARKE: - - - of the agreement.

PN254

THE SENIOR DEPUTY PRESIDENT: Yes. But there seems to be some anomaly because under clause 21.4.3 it says:

PN255

All work done during the rostered working hours on any shift -

PN256

and that includes public holidays -

PN257

is double time and a half.

PN258

So if you are on rostered hours on a public holiday you get double time and a half but if you are on overtime you only get double time. So if you called someone off a roster they only get double time.

PN259

MR CLARKE: What clause was that again, your Honour?

PN260

THE SENIOR DEPUTY PRESIDENT: Clause - in the agreement you are talking about?

PN261

MR CLARKE: Yes, in the agreement.

PN262

THE SENIOR DEPUTY PRESIDENT: Yes. In the agreement it is 21.1(b)(ii) - - -

PN263

MR CLARKE: Yes.

PN264

THE SENIOR DEPUTY PRESIDENT: And 21.4.3.

PN265

MR CLARKE: That is right.

PN266

THE SENIOR DEPUTY PRESIDENT: Yes. All right well, if I could just go then to the question of ordinary hours, clause 15.1 of the award says that the ordinary hours will be an average of 38 per week. The agreement in clause 19(a)(ii) talks about the hours being an average of up to 42 hours per week within a four week period or the roster cycle. Now the copies of the rosters that you have provided to me indicate a roster in a four week cycle of 38 hours - an average 38 hours. What troubles me is the wording of the agreement would allow the employer to work the employees on a roster cycle up to 42 hours a week on average and that would mean that it would reduce the hourly rate of pay to something like $11.30 or something.

PN267

And then another thing that troubles me is clause 21.1(d) insofar as it allows extra hours by agreement at ordinary rates of pay. Then on the question of allowances the award in clause 13.1.1 allows or provides for a first-aid allowance of $8.39 and there is no provision in the agreement for a first-aid allowance at all. The award in clause 13.1.4 provides for an allowance of $5.26 per week or $1.04 per day to attend and re-set alarm panels and there is no provision for that allowance in the agreement. And finally, clause 13.1.5 of the award provides for 50 per cent of costs of a licence for second and subsequent years and there is no provision in the agreement to compensate employees at all for the cost of a licence.

PN268

Now those are the matters that I have identified which appear to me on the face of it to be disadvantageous in terms of the award, that is, the matters in the agreement that appear to me to be disadvantageous in terms of the award and in circumstances where the proposed hourly rate of pay is simply bench marked on the award rate itself that I could hardly consider the agreement in its current form as not being disadvantageous to the employees. Now I have an obligation under the Act to allow the company an opportunity to address those matters or to find some way of allowing me to certify the agreement rather than refuse to certify. Obviously you haven't had sufficient time to consider in detail what I have put to you today and it maybe of some assistance if I was to provide to you the table of the matters that I have just identified or a table setting out the matters that I have just identified in order to allow you an opportunity to address those issues. What do you say about that?

PN269

MR CLARKE: Yes, your Honour. That would be most helpful if I could have that and the issue in regards to the matters you have raised in points 6, 7 and 8 in regards to the first-aid allowance and the alarm set allowance, that is a matter that we have had discussions with this Commission because those rates were supposed to be absorbed in the pay rise - pay rises that occurred prior to my time in my involvement with this award and discussion with various officers of the ALHMWU have indicated that there is no recollection of those rates being absorbed in the pay rise because the functions performed in relation to the alarm re-set allowance is done under a level 1.

PN270

The security officers who possess a recognised first-aid certificate as a condition of employment, well that is actually a matter that is determined by the Security Act and security officers to be licensed have had to get a first-aid - a recognised first-aid certificate, so the situation is that certainly has been recognised as well. I have got no documentation pertaining to matters in relation to the pay rises where these two allowances should have been absorbed, however, I shall attempt to research further on those allowances to see - find - first of all find and clarify that the allowances - it was agreed by consent at a hearing that those two allowances would be absorbed with the pay rises, but the other matters I thank your Honour for raising them with me and I will certainly respond to you on the other matters as well as these two matters that I have raised with you on the first-aid allowance and the alarm re-set allowance. I can't comment at this stage on the licensing but certainly I will address all those issues that you have raised.

PN271

THE SENIOR DEPUTY PRESIDENT: So Mr Clarke, did you say that those matters relating to those allowances was dealt with in the Federal Commission?

PN272

MR CLARKE: Yes, I believe they were, your Honour.

PN273

THE SENIOR DEPUTY PRESIDENT: Are you able to enlighten us anything on that, Ms Bennett?

PN274

MS BENNETT: No sir. At this stage at the hearing we are not able to enlighten you in relation to the absorption of those allowances, however, if we can be provided with a copy of the queries that you have raised today and whether this agreement, you know, meets the no-disadvantage test then we would be prepared to put in writing to Mr Clarke how we believe the award stands in its entirety today.

PN275

THE SENIOR DEPUTY PRESIDENT: Yes, all right. Well how much time would you need, Mr Clarke to consider these matters?

PN276

MR CLARKE: I don't believe I will be able to get all these matters addressed today - - -

PN277

THE SENIOR DEPUTY PRESIDENT: No, no, no. I don't expect you would but some time next week would be all right, or - - -

PN278

MR CLARKE: Yes, your Honour. Some time next week would be - - -

PN279

THE SENIOR DEPUTY PRESIDENT: How late next week? Towards the end of the week? That will be - if I leave it till Friday that will be seven days.

PN280

MR CLARKE: Yes, yes. That is enough time. I have had a cancellation on Thursday the 30th so I am free Thursday and Friday, your Honour.

PN281

THE SENIOR DEPUTY PRESIDENT: All right. Well we will send a notice of listing to you listing the matter for either next Thursday or Friday. Is there anything else, Mr Clarke you want to raise at this stage?

PN282

MR CLARKE: On the agreement your Honour, no - - -

PN283

THE SENIOR DEPUTY PRESIDENT: Good.

PN284

MR CLARKE: But certainly on other matters, I would certainly have other matters that need to be raised.

PN285

THE SENIOR DEPUTY PRESIDENT: Yes, all right. Well I will come back to that, but if I could just confirm, your fax number is 95711683 is it?

PN286

MR CLARKE: 3713 your Honour.

PN287

THE SENIOR DEPUTY PRESIDENT: Yes, I see. And do you have an e-mail address?

PN288

MR CLARKE: No, your Honour.

PN289

THE SENIOR DEPUTY PRESIDENT: All right. Ms Bennett, did you want to say anything else at this stage on this matter?

PN290

MS BENNETT: No, thank you sir.

PN291

THE SENIOR DEPUTY PRESIDENT: What was the other matter you wanted to raise, Mr Clarke?

PN292

MR CLARKE: Your Honour, we have had no notification of the statutory declaration that should have been supplied. We believe we do not have the name of the employee - the LHMWU is ..... representing and we don't have the statutory declaration so we don't know who - we are - to represent - - -

PN293

THE SENIOR DEPUTY PRESIDENT: Yes, well when it comes time for me to consider that issue and it hasn't actually arisen yet, I would be happy to hear from you as to why you say you should be provided with a copy of the name of the employee concerned. Is that all right?

PN294

MR CLARKE: Yes, your Honour.

PN295

THE SENIOR DEPUTY PRESIDENT: Yes. So I mean, you needn't concern yourself with it now, you needn't address me about that now but when this matter comes back on next time, if the matter is proceeding to certification, I will be hearing the ALHMWU about why the name shouldn't be divulged and I will hear you about why the name should be divulged.

PN296

MR CLARKE: Thank you, your Honour.

PN297

THE SENIOR DEPUTY PRESIDENT: All right. Anything else?

PN298

MR CLARKE: No, your Honour, that is all I can - - -

PN299

THE SENIOR DEPUTY PRESIDENT: All right. On those circumstances I will adjourn this matter to a date to be fixed next week. The matter is adjourned.

ADJOURNED INDEFINITELY [2.36pm]