AG2003/6985, Transcript of Proceedings [2003] AIRCTrans 4174 (22 September 2003)

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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER RICHARDS

AG2003/6985

APPLICATION FOR CERTIFICATION OF AGREEMENT

Application under Section 170LJ of the Act by
Coles Myer Logistics Pty Ltd and Another for
certification of the Coles Myer Logistics Hendra
Distribution Centre Certified Agreement 2003

BRISBANE

11.00 AM, FRIDAY, 5 SEPTEMBER 2003

PN1

THE COMMISSIONER: Good morning everyone. Please take a seat. Thanks. Could I take some appearances.

PN2

MR M. GUYMER: If it pleases the Commission, my name is Guymer, initial M., of the National Retail Association, appearing on behalf of the applicant, Coles Myer Logistics Pty Ltd. And with me is CUMERFORD, initial S., the company's Regional Human Resource Manager.

PN3

THE COMMISSIONER: Thanks, Mr Guymer.

PN4

MR L. GILLESPIE: May it please the Commission, Gillespie L., for the Shop Distributive and Allied Employees Association.

PN5

THE COMMISSIONER: Good, thanks, Mr Gillespie. Mr Guymer?

PN6

MR GUYMER: The application that has been made concerns the certification of a Section 170LJ agreement with an organisation of employees, namely the Shop Distributive and Allied Employees Association. I understand the application was filed in the Victorian Registry within the 21 day time limit. The company relies on the statutory declaration of Heidi Kaineder, which was filed along with the application, to support its assertion that the application has been validly made and that all the requirements of Section 170LT have been satisfied.

PN7

This agreement will replace an existing Section 170LJ agreement that has already passed its nominal expiry date. The existing agreement, C No 32308 of 2000 was certified in May 2000 and had a nominal expiry date of 31 July this year. The company met with union officials and site delegates on numerous occasions over a period of a few months to negotiate the agreement that is before you today. The parties held report-backs with affected employees to explain the terms of the proposed agreement and the effect of those terms. Copies were made available to those employees from 4 July 2003. The relevant employees were given more than 14 days to consider the proposed agreement before being asked to vote on it.

PN8

On 31 July and 1 August 2003 a secret ballot was held. A valid majority of relevant employees approved the agreement for certification. The result of the ballot was that out of a total of 93 employees 67 voted in favour of the agreement, 14 voted against it and two votes were declared informal. Annexure A to the statutory declaration of Heidi Kaineder contains a comparison of the agreement against the applicable State Award, the Retail Industry Interim Award State Queensland. The company submits that this shows that the conditions under the agreement provide a healthy advantage to employees in comparison with those contained within the award. The company requests that the Commission certify the agreement. If it pleases the Commission.

PN9

THE COMMISSIONER: Thanks, Mr Guymer. Mr Gillespie?

PN10

MR GILLESPIE: If the Commission pleases, as you have already been informed, this agreement replaces an agreement whose nominal expiry date was 31 July, matter No C 32308 of the year 2000. The agreement will operate for a period of two years, the proposed nominal expiry date being 31 July 2005. It will have been noted that there are substantial wage increases over the life of the agreement; that allowances will increase in line with the general wage increases. A new prescription in respect of a bonus scheme has been added which takes the form of Appendix B; that the severance payments upon retrenchment have been appreciably improved to the extent that where we had a cap of 22 weeks in the past now we have a cap of 52 weeks.

PN11

Bereavement leave has been improved to the extent that two extra days have been allowed for bereavement in respect of spouse, parents and children. The dispute settlement procedure has been better defined in that there are now specific time periods prescribed at each stage so as to leave the parties in no doubt as to what is required in that regard. We also note the fact that there is a transmission of business clause now inserted into the redundancy prescriptions. The employer now has the facility available to it, pursuant to relief in respect of acceptable alternative employment, also in connection with the redundancy prescriptions.

PN12

It will be noted from the documentation which has been filed that the agreement well and truly passes the no disadvantage test. It will also be noted that the statutory elements of the application or the statutory elements of the Act have been satisfied. By reference to the statutory declarations, and I refer particularly to the statutory declaration of Ian Blandthorn, we support the remarks of the employer applicant and we commend to the Commission certification of this document.

PN13

THE COMMISSIONER: Good, thanks, Mr Gillespie. Mr Guymer, I just might ask you one question about Ms Kaineder's statutory declaration and particularly so in respect of paragraph 6.8 thereof. Section 170LT(7) of the Act requires that the explanation of the terms of the agreement to persons as mentioned who are to be covered by the agreement must have taken place in ways that were appropriate, having regard to the person's particular circumstances and needs.

PN14

It's just that I noted in the statutory declaration at paragraph 6.8 that you have two sight impaired employees and these people who were sight impaired were provided with the proposed agreement separately to assist them in reviewing it. I'm just wondering how that actually was an appropriate method of allowing them access to the agreement.

PN15

MR GUYMER: Yes. Those employees with those disabilities were identified and singled out for special treatment to ensure that they had a full understanding of the agreement and the effect of the terms of the agreement. My understanding is that they were sat down individually and the agreement explained to them fully and questions asked to ensure their understanding of what they were agreeing to.

PN16

THE COMMISSIONER: So what actually happened was that they were sat down separately and the agreement was explained to them - - -

PN17

MR GUYMER: Yes.

PN18

THE COMMISSIONER: - - - or read to them or - - -

PN19

MR GUYMER: Yes, Commissioner, yes, and questions asked.

PN20

THE COMMISSIONER: It just wasn't that they were provided with their own copies?

PN21

MR GUYMER: No, that's right. No.

PN22

THE COMMISSIONER: Good, okay. Thanks, Mr Guymer, that clarifies that matter in the statutory declaration. The clause I want to take the parties to for some discussion this morning is clause 43 of the agreement. Mr Guymer - and these questions go to both Mr Guymer and Mr Gillespie and you can answer in whatever arrangement or relationship you like. But first of all I'm just interested to know what - Section 43 is headed Outside Workers. I'm just wondering whether you might explain to me first of all, as best you're able in these circumstances, who an outside worker is.

PN23

MR GUYMER: Yes, Commissioner. May I have one minute, Commissioner before explaining?

PN24

THE COMMISSIONER: Certainly.

PN25

MR GUYMER: Thank you. Thank you, Commissioner. I've been informed, Commissioner, that it refers to contract workers, employees that are employed by an agency and contracted to work at this site.

PN26

THE COMMISSIONER: All right then. So they are not employees of the company?

PN27

MR GUYMER: No, Commissioner.

PN28

THE COMMISSIONER: See, the reason I'm asking this is because I just have a concern about some elements of this clause, some sub-clauses in clause 43, so far as they pertain to the requisite employment relationship required in the agreement by virtue of Section 170LI and LH of the Act. The clauses I'm particularly concerned about are 43.1.3 and 43.1.5. So the clause deals generally with the circumstances in which the company will employ employees of another employer in work that the company requires to be undertaken. Clause 43.1.3 says:

PN29

All outside workers -

PN30

and we have a view at the moment who they are.

PN31

All outside workers so engaged subject to the previous conditions will be subject to the terms and conditions of the -

PN32

Presumably of this certified agreement. The EBA refers to this certified agreement. Clause 43.1.5 says:

PN33

The rate of pay -

PN34

43.1.5 in essence is, I think, a - it's a sub-set of 43.1.3 perhaps but it says:

PN35

The rate of pay for outside workers will be at least the team member level one rate of pay as defined in the certified agreement.

PN36

Now, I'm just wondering whether the parties might be able to assist me in explaining to me how these clauses pertain to the relationship between the employer and the employee.

PN37

MR GUYMER: Commissioner, I may need to seek some further instructions if this becomes an issue, however, my understanding would be that it's a consideration that it's more incidental to the employment relationship of the employees at the site and is a clause that will indirectly have an effect on the employment relationship between the company and its employees. Mr Gillespie may be able to provide some further information on that.

PN38

THE COMMISSIONER: Mr Gillespie?

PN39

MR GILLESPIE: Quite clearly, Commissioner, if the employer were permitted to engage outside employment on a contract basis, upon terms and conditions that were inferior to the contents of this document, then the employment position, the permanent employment position of people, subject to this agreement, would be undermined. This being the case, it would be our submission that that clause clearly impacts upon the relationship between the employer and the employee, because it does have the effect of preserving the integrity of the employment relationship as between the employers and the employees.

PN40

In other words, persons who are engaged on a contract basis may not be engaged on terms and conditions which are of a lesser standard that those that are prescribed in the agreement, thereby preserving the integrity of the employment situation of those employees of the company.

PN41

THE COMMISSIONER: Well, there are a run of decisions of the Commission in respect of whether or not clauses such as this are clauses that pertain to the requisite relationship in relation to Section 170LI and LH of the Act. What I might do, rather than try and do this on the run - it might be best if I give the parties some time to give me some further submissions, to the extent that they want to, about how this clause operates and how it meets the requirements of Sections 170LI and LH of the Act, whether or not it directly pertains to the employment relationship, and if so how, and if it doesn't directly pertain to the employment relationship, in what manner can it be construed to be incidental to that relationship in a way that enables it to conform with the requirements of the Act. Now, that appears to be a satisfactory way to go about it, Mr Guymer?

PN42

MR GUYMER: Commissioner, would you be considering that those submissions be in writing?

PN43

THE COMMISSIONER: I would say so. As to the timeframe, I am in the parties' hands as to when they would like to come back to me. I presume you would want to do it reasonably promptly.

PN44

MR GUYMER: Could we have another minute to talk about that, sir?

PN45

THE COMMISSIONER: Yes, certainly.

PN46

MR GUYMER: Thank you.

PN47

THE COMMISSIONER: You might want to have a discussion with Mr Gillespie, of which you are about to do. But also you can come to a view as to whether or not you just want to give written submissions to me or you want to have written submissions and then come back for a hearing on it. It is up to yourselves as to how you would like to proceed.

PN48

MR GUYMER: Thank you, Commissioner.

SHORT ADJOURNMENT [11.15am]

RESUMED [11.17am]

PN49

THE COMMISSIONER: Thanks very much, everyone. We have had the opportunity for a brief adjournment whilst we have discussed some programming matters. It has been agreed between Mr Guymer and Mr Gillespie that the parties will make written submissions to me by close of business next Friday, being Friday, 12 September. I have agreed that in the event that on reading those submissions I require oral submissions for the purposes of clarification of any of those submissions, then I will indicate so to the parties. But failing that I will rely on the written submissions alone for the purposes of reaching a decision.

PN50

Mr Guymer has indicated to me that he would like me to give an indication upon a decision issuing whether undertakings are feasible in these circumstances. I have indicated that LI and LH matters don't necessarily give rise to access to undertakings pursuant to Section 170LB of the Act. Nonetheless if there were circumstances that did generate some capacity to provide some management of this issue, then I would certainly explore that with the parties.

PN51

But, as I said, in LI and LH matters there are restrictions on the scope for the Commission to effectively manage the issue, if it is found to be a contravention of the requisite relationship, because there simply ceases to be an agreement, and LB is highly restrictive in terms of its capacity to rescue matters outside of the context of Section 170LT and Section 170LU of the Act. And as I said these matters fall within Division 2 of Section 170LI and LH of the Act, a different category, a different category of matters for the purposes of LB.

PN52

But that said, then I have also indicated to the parties, and I might say formally, that having considered the remaining aspects of the agreement inclusive of the statutory declarations, I am of the view that bar these outstanding matters relating to clause 43, which we need to explore, with the exception of those matters, I am satisfied that the agreement in all other respects meets the requirements of the Act. In the event that I am satisfied that there is no contravention of Section 170LH and LI of the Act by virtue of clause 43, I would move through my next phase in the decision to certify the agreement as a consequence.

PN53

But in the event that I am not then other action would be taken. But that does, at least, give the parties sufficient information to understand that in all other respects, bar 43, the matter at this stage is - raises no concerns with the Commission. Any other queries about management of this issue. Mr Guymer?

PN54

MR GUYMER: No, Commissioner.

PN55

THE COMMISSIONER: Mr Gillespie?

PN56

MR GILLESPIE: No, thank you, Commissioner.

PN57

THE COMMISSIONER: Good, thanks very much, everyone, for your assistance. We are adjourned.

ADJOURNED INDEFINITELY [11.21am]