AG2003/313, Transcript of Proceedings [2003] AIRCTrans 5179 (25 November 2003)

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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

DEPUTY PRESIDENT McCARTHY

AG2003/313
AG2003/409

APPLICATION FOR CERTIFICATION
OF AGREEMENT

Application under section 170LK of the Act
by BG and JL Raffaele Proprietary Limited
for certification of the Blockbuster
Manning and Leeming Certified Agreement 2003

Application under section 170XF of the Act
by BG and JL Raffaele Proprietary Limited
for determination of designated award for
certified agreement

PERTH

10.03 AM, FRIDAY, 7 NOVEMBER 2003

PN1

MR G. McCORRY: I appear for the applicant in this matter, in both matters.

PN2

THE DEPUTY PRESIDENT: Yes. I issued to you a report which identified some issues and some questions. I take it you received that?

PN3

MR McCORRY: I did, your Honour and I must apologise for the quality of that first statutory declaration. It didn't - wasn't actually - and a further statutory declaration has been filed, which addressed those issues raised in your Honour's report.

PN4

THE DEPUTY PRESIDENT: No, that hasn't found its way to my desk. Do you have another copy of it, Mr McCorry?

PN5

MR McCORRY: I have a copy of it. It is an unsigned copy, your Honour.

PN6

THE DEPUTY PRESIDENT: Well, yes, if you can provide that to me, notwithstanding that it is not signed. Thank you. So perhaps you can take me to the particular points where there has been alterations or further explanation.

PN7

MR McCORRY: I'm afraid your Honour has my copy of it at the moment. The issue, your Honour, raised was that the steps that were gone through to ensure that people understood their agreement and I should say, your Honour, that on the copy of the statutory declaration, the second declaration that was filed, there were attached to it documents, one being the explanatory notes that were provided to each employee with a copy of the agreement and also attached to it was a letter that was sent to each employee with the notes and the - - -

PN8

THE DEPUTY PRESIDENT: They were attached to the first statutory declaration too, Mr McCorry. The letter of 14 July and an outline headed: Understanding of Certified Agreement. Are they the attachments?

PN9

MR McCORRY: They are the attachments, your Honour.

PN10

THE DEPUTY PRESIDENT: Yes. Just in looking at that first letter whilst we are waiting for a copy of the second statutory declaration to be copied, looking at that letter of 14 July, the fourth paragraph there says:

PN11

If you are a member of an organisation of employees, you may request the organisation to represent you in meeting and conferring with us about this agreement. Please notify Mr McCorry at the above email address if you wish to do this.

PN12

That was the manner in which it was explained to you, saying to employees that they could request the union to represent them.

PN13

MR McCORRY: That is correct, your Honour. The second sentence in that paragraph is merely to arrange the time and place for any such meeting to be conducted and your Honour will note in the following paragraph, that there are arrangements made if a number of employees wanted to make proposals that they should get together and consider it themselves.

PN14

THE DEPUTY PRESIDENT: Yes.

PN15

MR McCORRY: So a majority view of a point would be taken.

PN16

THE DEPUTY PRESIDENT: But the notification of yourself immediately under the indication of the entitlement for an organisation to represent employees. Could that not be an impediment to people doing that?

PN17

MR McCORRY: I don't believe so, your Honour. It is my understanding that it would be seen as being notify me if you wish to confer, not for me to contact the organisation of employees or the union on an individual's behalf.

PN18

THE DEPUTY PRESIDENT: But why have that sentence in there at all? It could be a discouragement to employees, could it not?

PN19

MR McCORRY: I don't believe so, your Honour. It was merely if you wish to meet and confer with us, with the union representative, I'm the person that you should contact to do it.

PN20

THE DEPUTY PRESIDENT: Yes, I understand, thank you. All right. Well, now you've got that statutory declaration, perhaps you can take me back to where we were.

PN21

MR McCORRY: If I could take your Honour to the third page of it, at paragraph 5.4 which was - the answer of which was missing from the original statutory declaration.

PN22

THE DEPUTY PRESIDENT: Yes.

PN23

MR McCORRY: And as it made clear, each person was provided with a copy of the agreement, explanatory notes and a letter from the employer about the agreement, 21 days before the date of conducting a vote on certification. And the following one, the following question, every person was actually given their individual copy of the certified agreement, their individual copy of the explanatory notes. The accompanying letter makes it clear that they were entitled to have a union represent their interests, meet and confer about the agreement. Going down to 5.9, the explanatory notes and the letter were written in simple language and expressly recommended that the employees seek advice from a reliable person or direct confidential questions to me and that appears in the third paragraph of the explanatory notes.

PN24

If you have any questions about the certified agreement or what happens if you vote for its registration, you should ask your employer or some person who knows about certified agreements to explain matters for you.

PN25

THE DEPUTY PRESIDENT: Yes.

PN26

MR McCORRY: And your Honour will see that the explanatory notes themselves are written in quite simple straightforward language. I don't believe that anyone would find them difficult to understand and in my submission, that they accurately reflect the terms of the certified agreement themselves. And as the first sentence of the explanatory notes indicates that the certified agreement is a legal document, it is written in a particular form for that purpose. Now, the employees were given 18 days to decide before voting on the agreement and the certification of it would not result in any reduction in the terms and conditions of employment. In fact, they are an improvement on their existing terms and conditions of employment.

PN27

THE DEPUTY PRESIDENT: Yes. And that deals with, what you're saying is those expansions and explanation deal with the issues in relation to the agreement itself in that new statutory declaration. Is that what you're saying, Mr McCorry?

PN28

MR McCORRY: Yes.

PN29

THE DEPUTY PRESIDENT: Okay, thank you. Well, perhaps you can take me to the issue of whether it is an award, a relevant award for these matters?

PN30

MR McCORRY: Yes, your Honour. Your Honour, I have done a search on the Commission's database for an award, a Federal Award applying in Western Australia, which would cover this industry. There is no award. There is no award which is binding on the applicant, any other award, in respect of the applicant's business or any business, for that matter, and my research indicated that there was only a Federal Award in South Australia. However, an examination of the respondency list - perhaps I can go back a bit, your Honour. There is a Video Award applying in South Australia.

PN31

THE DEPUTY PRESIDENT: Video hire?

PN32

MR McCORRY: To video hire/sales. That is the Video Industry South Australian Award and that is award number 802006.

PN33

THE DEPUTY PRESIDENT: Yes.

PN34

MR McCORRY: That award, when the respondency list is examined, indicates that it does not cover the major employers, like Blockbuster, Video Ezy in South Australia and this would be a most peculiar situation that you have an award which doesn't cover the major participants in the industry. And I can't explain why it does not apply. It is a relatively modern award. I can only assume that there must be some characteristics of the video industry in South Australia that apply for these respondents to this particular award, which don't apply to the Blockbuster franchisees in South Australia, other major players such as Video Ezy.

PN35

I'm not in a position to say because there does not appear to be anything in the award, the South Australian Award, which is at all exceptional or peculiar to - which would explain - - -

PN36

THE DEPUTY PRESIDENT: But the test is, Mr McCorry, whether it is the same kind of work, not who it applies to, so if it applies to employers and employees that are carrying out the same kind of work, it is a question of whether the work is the same.

PN37

MR McCORRY: Well, that is just it, your Honour, the award doesn't give any indication - - -

PN38

THE DEPUTY PRESIDENT: I see.

PN39

MR McCORRY: - - - of the nature of the work that is carried out, which leads me to believe that it must be somewhat different from what applies to the major players in the industry.

PN40

THE DEPUTY PRESIDENT: But you've got no way of - - -

PN41

MR McCORRY: I've got no way of determining it. However, what the applicant says in this matter is that the work that they are doing, hire and sale and videos, is work that is covered, work performed by persons under the State Shop and Warehouse Award.

PN42

THE DEPUTY PRESIDENT: Yes.

PN43

MR McCORRY: And it is only the fact that it is not - that particular award dates back, the State Shop and Warehouse Award dates back to 1976.

PN44

THE DEPUTY PRESIDENT: Yes.

PN45

MR McCORRY: Prior to the video industry even coming into existence, that they would not be covered by the common rule application of it.

PN46

THE DEPUTY PRESIDENT: Can you categorise the video hire industry as an industry in its own right or is it a hire industry or is it something else? See, I've had a quick look at the shop - and I will come to the reason why this became very critical in a moment, Mr McCorry, but I've had a look at the Shop and Warehouse Wholesale and Retail Establishments State Award 1977 and I'm sure you have scrutinised this yourself very closely. And in the scope of the award, it says it applies to:

PN47

Workers employed in any calling or callings employed herein in the industry or industries carried on by the respondents.

PN48

And I will go to that in Schedule C and I will go to that schedule in a moment. And shop assistant is defined and includes persons employed in hiring out activities in a shop. So at least the work of the shop assistant is covered. It becomes a question of whether there are any employers in the respondency list that are engaged in the industry that your client is engaged in. Now, there are a number of respondents there and I take your point that it goes back to 1977 or it might be very difficult to ascertain what are the industries of those respondents?

PN49

A lot of those respondents are probably not even in existence any more and as you say, if the industry your client is engaged in is the video hire industry as distinct from a hire industry, then it may well be that there is no coverage by this award. But then, if it is engaged in the hire industry, there are employers and respondents named there, for example, Coates Hire Service and maybe even Federal Loan Office, which from my lapsing memory was some form of pawnbroker agency. But it may well have also been a hire agency or whatever. I don't really know. Or even whether there is, in some of the major stores that are named here, they may have had sections of them that had hire facilities.

PN50

For example, Myers may well have. Again, it is almost impossible for us to ascertain for the purposes of these proceedings. The reason it becomes important, Mr McCorry, is the timing of when the XF application was made. If it was not made, as I've recently decided in a decision relating to the certification of an agreement, if it was not made prior to the agreement actually being made, then the agreement may not be certifiable because the Act requires that as soon as there is an intention to make an agreement, if there is no award coverage, then there is an obligation to make an application under Section 170XF for the designation of an award. But if there is an award that actually does cover, then it may not fall foul of the provisions of the Act.

PN51

Do you see the dilemma that you or I or both of us may be placed in? So the reason I'm going through this in some detail is that if the Shop Assistants Award is an award that applies, and that turns on what industry is the correct description of your client's industry, then it may be certifiable. If it is not, then you might have to go through the whole process again, technical and annoying as that may be.

PN52

MR McCORRY: Indeed, your Honour. Your Honour, I can say that the matter is actually going to be put beyond doubt because the Shop Assistants Union has actually made application to expressly put the video hire industry in the award and it will have a common rule application. Now, I can - - -

PN53

THE DEPUTY PRESIDENT: But that hasn't happened yet.

PN54

MR McCORRY: It hasn't happened yet. Now, I can speak from my own experience and I realise I'm making a statement from the bar table, so it would have to be borne - my evidence is not under oath, as it were. I expect from my eight years experience as an industrial inspector, where one of my duties was to enforce this - the Shop and Warehouse Award that the award was considered to be applicable to video stores if they sold goods.

PN55

THE DEPUTY PRESIDENT: Yes, yes.

PN56

MR McCORRY: If they purely hired the goods out it did not apply because, at that particular stage, the definition of shop assistant didn't actually encompass hiring activities. The work that is being done now, I'm advised by the applicant in this matter, consists of 30 per cent sales which is a substantial portion and this was following from changes in the industry to where people are actually purchasing DVDs rather than hiring them. So, in my view - - -

PN57

THE DEPUTY PRESIDENT: Or hiring and then buying.

PN58

MR McCORRY: Yes, if they wish to and I understand there are further changes coming in to the industry as well where it would be almost - these are merely proposals, but you would be hiring it but it would be non-returnable because you could only play it once, the ultimate in the disposable society, I suppose.

PN59

THE DEPUTY PRESIDENT: Yes, I don't know that I would be hiring those.

PN60

MR McCORRY: Well, I suppose it depends, your Honour, on what it costs you to buy a disposable one but if you could only play it once you wouldn't want to miss out and get called to the telephone while it was on. So, the applicant would be, in my view, a respondent or bound by the Shop and Warehouse Award to the extent that they were selling goods and I can speak from my experience that the inspectorate, of which I was a member, relied upon the fact that during the 80s Boans, as it then was, did have a hire facility for films.

PN61

THE DEPUTY PRESIDENT: Yes.

PN62

MR McCORRY: Of course, Boans no longer being in existence and Myers, actually being respondent to a Federal certified agreement, it rather - - -

PN63

THE DEPUTY PRESIDENT: But it becomes a question of what Myers, as a named respondent to the Shop Award, was - what functions and facilities and services and the format.

PN64

MR McCORRY: Yes. Well, it was certainly engaged in that when it was - - -

PN65

THE DEPUTY PRESIDENT: Yes. Well, that might get you over the line, Mr McCorry.

PN66

MR McCORRY: Or if I can't adduce any other evidence from it, other than - - -

PN67

THE DEPUTY PRESIDENT: Because in all respects that I can - and I will have another closer look at it, given what you've said, it would appear that the agreement does not disadvantage employees when compared to that award.

PN68

MR McCORRY: No, and I - it is certainly the case now that places like Myers sell videos and DVDs. They just don't hire them any more.

PN69

THE DEPUTY PRESIDENT: Yes.

PN70

MR McCORRY: So, it is a major and substantial portion of the applicant's activities, is the sale, and - - -

PN71

THE DEPUTY PRESIDENT: Yes. So, you wouldn't be - rather than designation, if for the purposes of certification, I found that the Shop and Warehouse Employees Award was an applicable award or a relevant award, then that wouldn't - and compared to that award, the agreement didn't disadvantage any employees, then that would not - - -

PN72

MR McCORRY: That would certainly be the applicant's preference, your Honour.

PN73

THE DEPUTY PRESIDENT: That would not be something that would cause you any angst?

PN74

MR McCORRY: Not at all, your Honour.

PN75

THE DEPUTY PRESIDENT: Yes, okay. Is there anything further you wish to - - -

PN76

MR McCORRY: No, your Honour, unless you have any questions?

PN77

THE DEPUTY PRESIDENT: No, I don't. I will consider what you've said and have another examination of that, Mr McCorry, but - and if I do find that the Shop and Warehouse Award is applicable and it doesn't disadvantage employee when comparisons are made to it, the agreement will be certified. But as I've indicated to you, if I find that, well, the award is not a relevant award, you - because the XF application was not made prior to the - at the time it should have been made and prior to the agreement being made, may find that, unfortunately, you may have to go through the whole process again, but you will cross that street when we come to it.

PN78

The print I would refer you to, looking puzzled, is PR939083. You will find my reasoning for that in there. On that basis I will adjourn these proceedings, unless there is anything further you wish to add, Mr McCorry?

PN79

MR McCORRY: Just one question, your Honour, and that is if your Honour finds that the Shop and Warehouse Award does not apply and you do have to make a determination under 170, whatever the alphabet number is, would that also require a further application for the designation of the certified - - -

PN80

THE DEPUTY PRESIDENT: Yes, you would have to go - well, no, it wouldn't. I haven't turned my mind to that but my immediate provisional reaction is, no, it wouldn't because it would be an indication of intention to make another agreement which would be the process that you're going through, so that would then serve as the - it is a good point you raise, that would then serve as the designation for the purpose of the agreement you intend to make.

PN81

MR McCORRY: Thank you, your Honour.

PN82

THE DEPUTY PRESIDENT: Yes. I will adjourn these proceedings.

ADJOURNED INDEFINITELY [10.29am]