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Australian Industrial Relations Commission Transcripts |
AUSCRIPT PTY LTD
ABN 76 082 664 220
Level 6, 114-120 Castlereagh St SYDNEY NSW 2000
PO Box A2405 SYDNEY SOUTH NSW 1235
Tel:(02) 9238-6500 Fax:(02) 9238-6533
TRANSCRIPT OF PROCEEDINGS
O/N F8040
AUSTRALIAN INDUSTRIAL
RELATIONS COMMISSION
VICE PRESIDENT LAWLER
AG2003/9259
APPLICATION FOR CERTIFICATION
OF AGREEMENT
Application under section 170LK of the Act
for certification of the Salmat Teleservice
Pty Limited Enterprise Agreement
SYDNEY
10.12 AM, MONDAY, 1 DECEMBER 2003
Continued from 24.11.03
PN272
THE VICE PRESIDENT: Thank you. The appearances are as before, are they?
PN273
MS ALLEN: Yes, your Honour.
PN274
THE VICE PRESIDENT: Yes. Yes, in Melbourne?
PN275
MR NUCIFORA: Yes, your Honour.
PN276
THE VICE PRESIDENT: Thank you. Fine, I understand the union now seeks to appear as agent for an employee, whose identity has been disclosed as I understand it, accidentally, but nevertheless disclosed to the employer's representative, so that the application is an application for leave to intervene on behalf of the employee, pursuant to section 43(1). That is correct, Mr Nucifora?
PN277
MR NUCIFORA: Yes, your Honour, except I was going to say it was accidentally sent to the employer advocate, Ms Allen, however at the same time as it turns out the employee was happy for the employee's name to be revealed to the employer advocate only and the Commission.
PN278
THE VICE PRESIDENT: Right. Ms Allen, are you content with that?
PN279
MS ALLEN: I'm content with the fact that it is an employee of the company.
PN280
THE VICE PRESIDENT: Right.
PN281
MS ALLEN: I have not at this stage revealed it to the company. We do have concerns that should the employee not be present for cross-examination, whether or not their union is seeking instructions on behalf of that employee or - - -
PN282
THE VICE PRESIDENT: I do not know that the employee is proposing to give any evidence. I take it the employee is not proposing to give evidence, Mr Nucifora?
PN283
MR NUCIFORA: No, your Honour.
PN284
THE VICE PRESIDENT: Yes. You are agreeing with me?
PN285
MR NUCIFORA: Yes, sorry, yes, I am agreeing. Yes, I am agreeing with your Honour.
PN286
THE VICE PRESIDENT: Yes, that is fine, yes. Well, I do not think that problem arises then, Ms Allen. I think the union's arguments are really based upon the terms of the agreement only. Fine, well, do you want to be heard in opposition to a grant of leave to intervene, Ms Allen?
PN287
MS ALLEN: Basically, I just wish to rely upon the written submissions regarding that.
PN288
THE VICE PRESIDENT: Now, just help - - -
PN289
MS ALLEN: It is more specifically - - -
PN290
THE VICE PRESIDENT: This file has become something of a mess.
PN291
MS ALLEN: I know the feeling. In reference to the written submissions that were filed on Friday, titled: Outline Of Submissions On Behalf Of Salmat Teleservice Pty Ltd - - -
PN292
THE VICE PRESIDENT: Just pardon me one moment. I have a statement of Katie Robb.
PN293
MS ALLEN: No, it was sent along with that statement.
PN294
THE VICE PRESIDENT: Yes. I have an outline of submissions on behalf of Salmat.
PN295
MS ALLEN: Yes, that is the document I am referring to, your Honour.
PN296
THE VICE PRESIDENT: Now, Ms Allen, I have to confess that I have not looked at these submissions so you will need to - - -
PN297
MS ALLEN: I will draw your attention to the particular paragraph that I am referring to. On the front page of that document there is a heading in bold and underlined stating:
PN298
Leave to intervene as an agent of the employee. Should Mr Nucifora seek to appear on behalf of an agent of an employee.
PN299
THE VICE PRESIDENT: Yes.
PN300
MS ALLEN:
PN301
In accordance with section 43(1) of the Workplace Relations Act, we can confirm the following, it appears that the employee that Mr Nucifora is proposing to represent is a current employee of the company. This has been confirmed by Mr Nucifora revealing the name of the employee to the company's representative and the company's representative is checking that this person is an employee of the list of names that the company has provided and it does appear that the employee has signed a letter requesting Mr Nucifora to be his representative. We do have an objection, however, to him appearing as an agent on behalf of the employee as the company has concerns that the employee is required to sign the letter under duress. The only way the company can be satisfied that this was not the case would be to cross-examine the employee.
PN302
THE VICE PRESIDENT: Yes.
PN303
MS ALLEN: Then it goes on further:
PN304
To refer to a decision of Commissioner Cargill.
PN305
Our submission is that leave to appear as agent should only be granted if the employees make themselves available for cross-examination and that this issue has been addressed in other matters before the Commission and I refer to a decision there of Commissioner Cargill at paragraph 6:
PN306
At the conclusion of the evidence I informed the parties and Mr Ian that I was satisfied that the five employees had authorised the NUW to represent them in the matter. The issue to be determined is whether leave should be granted pursuant to section 43(1). All three representatives made submissions on the subject and I decided to grant leave to intervene to the two representatives who made themselves available for cross-examination.
PN307
THE VICE PRESIDENT: Yes. Just bear with me one moment. Mr Nucifora you provided, I think on the last occasion, you provided an authority signed by the employee and dated 17 November 2003. Is that the document you provided to Ms Allen?
PN308
MR NUCIFORA: That is the earlier one, your Honour. At this point - I sent correspondence there on Friday, 28 November with a signed copy of an individual authorisation, that is the employee authorising myself, as an individual. Ms Allen only has a blank page with the wording on it but it is not signed by the employee. What I sought was a commitment from Ms Allen, at least an email in writing, that the employees name would remain anonymous to her and yourself and ourself.
PN309
THE VICE PRESIDENT: I am afraid my other associate finished up on Friday and had the carriage of this and I was out Friday afternoon so I didn't have an opportunity to speak to him and he just simply left a very large bundle of paper on my desk. I don't think there is any issue about your authorisation. The issue is - I think this is the duress point that Mr Allen raises, just let me deal with that first. Ms Allen, what basis do you have or does your client have for its concern that the employee was required to sign the letter under duress?
PN310
MS ALLEN: Your Honour, the week that Mr Nucifora sought intervention was the week he found out, upon receiving our correspondence, about the agreement and it just appears to be highly coincidental that after receiving our correspondence, only then did the employee wish to have the union intervene. It may be an assertion, I don't know but there is a concern after receiving that notification Mr Nucifora has contacted the employee, for whatever reason, to try and intervene and try and coerce the employee to granting intervention then, that would be a concern. It is just a high coincidence that at the same time it happened when this agreement has been going on for a long time.
PN311
MR NUCIFORA: Your Honour, actually I was aware of the hearing prior to receiving the notification. As it turns out I happen to be looking through the listings on the Monday, the first Monday this matter was before you and saw - I think that was the Monday after 7 November, I think that was 11th, whenever it was - 10 November. I saw it in the listings that morning and then I received a letter later in the week on the Thursday and it was between that time, as a result of an earlier hearing, that I had made inquiries to see whether we had any members at Salmat via our Victorian Branch and that is when I was aware that we did.
PN312
Your Honour, I am reluctant to get further into the quagmire of technicalities of this but there are some other issues that have arisen in relation to our intervention, some that may fatal to my intervention on behalf of the employee. I think I need to inform you of two decisions that I was not aware of last week, that go to what the position is on section 43(1) and I refer you - your Honour, I don't want to be to-ing and fro-ing but I think it does cut to the chase. In relation to intervention, there is a decision of, originally Senior Deputy President Williams, PR920151 and I only found this this morning. Your Honour, I must admit I have been confused with the various authorities on this but this seems to be quite authoritative on section 43(1).
PN313
This is the Maintenance Resources Engineering Proprietary Limited, a section 170LK agreement and in that his Honour refers to there being a need for a member of the Commission to rely on section 43(2)(a) and (b) for 170LK matters unless the proposed agreement does not meet the requirements of being genuinely made. That is, prima facie it needs to meet the requirements of section 170LK. That decision was further reconfirmed in Grow Con by Vice President Ross in PR927672. So if we are intervening - I might just refer you to the paragraphs in that, your Honour. My apologies I was not able to get this to all the parties this morning but I think it is important in terms of law.
PN314
THE VICE PRESIDENT: Mr Nucifora, my memory is hazy but I am pretty sure I presided on a Full Bench that dealt with an appeal from Senior Deputy President Hampton from South Australia in relation to the Broken Hill Town Employees Union which was not a Federally registered or, indeed, at that stage, finally state registered union who had sought leave to intervene to oppose the certification of a 170LK(1) agreement. Senior Deputy President Hampton, as he now is, granted leave to intervene under 43(1).
PN315
This issue was argued and the Full Bench determined that if you were dealing with an entity that was not a Federally registered organisation that the word "organisation" in 43(2)(b) needs to be read as that term as defined in section 4, then there was no occasion to consider 43(2)(b) or 43(2)(a) for that matter and that the leave to intervene application fell to be determined pursuant to section 43(1). Now, to the extent SDP Williams and VP Ross may have decided that, as a matter of discretion, no organisation ought to be allowed to have any involvement on behalf of an employee pursuant to 43(1), I would, with respect, decline to follow that.
PN316
I can't imagine that they have in fact said that but if that is what they have said, I declined to follow it. 43(1) is a broad discretion and it is not be confined to exclude entire classes of persons. I mean, there may be good reasons, in a particular case why the discretion should not be exercised. I think what I ought to do is just adjourn for a couple of moments and have a look at those two decisions you have referred me to and see if I can track down this Full Bench decision.
PN317
MR NUCIFORA: Your Honour, just before - once again, I hate to further complicate this - there is another question of whether our organisation - I, as an individual, who happened to be employed by an organisation have been authorised to represent the individual employee. On both occasions the employee has mentioned that I, as an individual, can act as the employee's representative. Your Honour, there is a question about whether the employee is a direct party to the agreement and therefore the employee's representative - there is a question about whether the employee's representative needs to intervene in the first place although they are a party interested in the certification proceedings.
PN318
THE VICE PRESIDENT: On any view, an employee who is going to be bound by the agreement is interested in the proceedings. They are not a party to the application therefore they need leave to intervene but because they are going to be bound by the agreement, cogent reasons would need to be advanced why they should not be given leave to intervene, if they wish to oppose certification, given that they are going to be bound by it and that is just as a matter of principle. I think your candour, Mr Nucifora, is commendable but I don't, at the moment, see that those matter you have raised present any impediment to the employee being granted leave and to you being granted leave to appear as the employee's agent. What were the paragraphs in SDP Williams' decision?
PN319
MR NUCIFORA: I'm sorry it is - sorry, I don't have the paragraph but it is the third paragraph numbered - it is the third last paragraph and then there's a very brief conclusion. It is really those - - -
PN320
THE VICE PRESIDENT: The Grow Com?
PN321
MR NUCIFORA: That is in - sorry, that is, I mean Grow Com he is on a vice president roster in the sorry, once again I don't have paragraph numbers but it is right towards the end of the last few paragraphs under the conclusion.
PN322
THE VICE PRESIDENT: Okay. Ms Allen, do you have any objection. What I'm proposing to do is adjourn for a few moment and go upstairs. It will probably take 15 minutes, I would imagine.
PN323
Would you like to see copies of that, Mr Tamplin?
PN324
MS ALLEN: Your Honour, the adjournment is fine but I would like to see copies if possible.
PN325
MR TAMPLIN: Your Honour, sorry. Just another Full Bench decision that you were a member of. We believe it was PR930605 and in particular paragraph 21 was relevant in that decision. That was Formula One Catering Services.
PN326
THE VICE PRESIDENT: That is the one.
PN327
MR TAMPLIN: Yes.
PN328
THE VICE PRESIDENT: That is the one. So do you still say against your interest that you don't think on the authorities leave could be granted to you, Mr Nucifora?
PN329
MR NUCIFORA: I believe that it can be as an intervener, so long as the requirements of section 170LK as opposed to LT are met up front, but in terms of LT we've raised some concern that that is the no disadvantage test, and of course, sorry, the ones in the LK decision goes to was the agreement genuinely made in the first instance. It is a prima facie decision that the Member makes before they allow intervention. Now, unless that was overruled by the Full Bench. I'm sorry, I haven't - yes, sorry, your Honour. It seems just on looking at that decision of the Full Bench that you are quite correct. It does - that there is full discretion under 43(1).
PN330
THE VICE PRESIDENT: Yes, I think the President was part of that Bench, too wasn't he?
PN331
MS ALLEN: Yes.
PN332
MR NUCIFORA: Yes.
PN333
THE VICE PRESIDENT: Yes. My recollection is in error to the extent that I thought I was residing but I was in fact responsible for drafting that which is why I made that mistake.
PN334
MR NUCIFORA: Yes.
PN335
THE VICE PRESIDENT: Look, just as another practical matter, Mr Nucifora, I should say that I've had the benefit of looking through a very detailed spreadsheet that was prepared by Ms Allen I presume or someone at the company, taking each of the employees whose surnames began with A or any letter through to L for the first pay week in August and it is clear that all employees are advantaged in a monetary sense by this agreement and some of them substantially so. It is in the range of, I think, $20 to well over $100. Indeed, heading on to $200 in some instances.
PN336
My prima facie here is that the no disadvantage test is satisfied in this case and that the agreement - I know I'm happy to hear argument to the extent that leave to intervene is granted but bearing in mind that the test is an on balance test where one has to weigh it all up. I have some difficulty seeing that such disadvantages as may be there are disadvantages which would cause disagreement to fail the test. That is the first observation. The second observation is that given the evidence that the company proposes to call I am not - if the evidence remains simply the I described it as a petition - the short statement signed by a number of employees.
PN337
If that is the way the evidence remains and people are not prepared to get into the witness box and say that is what happened I do not see how I could properly accord sufficient weight to that document to displace the evidence that the employer is proposing to call. Now, in which case it is likely the agreement will be certified. I simply foreshadow that so that you can usefully use your time. Ms Allen, I think it is appropriate that your representative in Melbourne show Mr Nucifora the spreadsheet.
PN338
MS ALLEN: Your Honour, I did email it through to him on Friday. I just took the employees names out for confidentiality, but I did email the spreadsheet to him.
PN339
MR NUCIFORA: Yes. I do have all that material, your Honour. The other thing is that we were going to seek to withdraw that quasi petition as evidence in any case.
PN340
THE VICE PRESIDENT: Well, then what is left to argue about in relation to the whether or not there's a valid agreement?
PN341
MR NUCIFORA: Relying on the stat dec and the recent material that came through there's a concern whether employees as opposed to employee representatives made an informed choice. That is that they could compare the agreement with the award. The other thing, that is the terms - - -
PN342
THE VICE PRESIDENT: That is not what is required by the Act. The Act simply requires them to receive a notice to have the agreement available to inspect and then for a vote to be taken and it is up - - -
PN343
MR NUCIFORA: Yes. They had been at arms length.
PN344
THE VICE PRESIDENT: The Act proceeds on the basis that working people are not idiots.
PN345
MR NUCIFORA: Yes.
PN346
THE VICE PRESIDENT: They are not to be treated as though they belong in some sheltered workshop and that they have a capacity to look out for their own interests. The notion that it hasn't been explained to them and all the advantages and disadvantages pointed out to them is not something that I could find any basis for in the legislation to impose some sort of super requirement.
PN347
MR NUCIFORA: Your Honour, we would have felt that that was the position up until the MSA security offices Full Bench decision which goes to, I guess, the closest the closest scrutiny that we've had, not just in that decision but in recent times about there being an informed choice. That is, employees actually knowing that there is an award.
PN348
THE VICE PRESIDENT: That is the decision where Deputy President Blain descended the appeal from Polites.
PN349
MR NUCIFORA: That is right. Yes. Actually that is an authority for the no disadvantage test in terms of comparing the award. The terms of the award with the agreement and strictly that - we say that - - -
PN350
THE VICE PRESIDENT: Well, I have to say I don't - I'm happy to hear argument from you but my present view is that that decision ought to be distinguished to its own facts. That Full Bench failed to refer to relevant Full Federal Court Authority and for my own part I think the descent of Deputy President Blain is absolutely compelling. It may not be the most elegantly expressed descent. However, in my view it is correct. I will require persuading by you that I should be following the approach of the majority. Particularly having regard to the fact that this Full Federal Court Authority which was not referred to which is contrary to the approach that they've - that the members and the majority have adopted.
PN351
MR NUCIFORA: Yes. Sorry, your Honour. In terms of - that was an authority for the no disadvantage test. The Full Bench decision in Bread Trade in print number T2319 goes to in paragraph 20 genuine approval and implying that there's consent from the employers and they were - the seminal employer was informed and they were advised of the consequences of just giving their approval for the agreement when compared with the award - the permanent award, not the interim award.
PN352
THE VICE PRESIDENT: Okay. So that is T2319. Well, listen I will just - - -
PN353
MR NUCIFORA: That - yes.
PN354
THE VICE PRESIDENT: I will adjourn for 15 minutes, have a look at these decisions, and I will be back.
PN355
MR NUCIFORA: Yes, your Honour.
SHORT ADJOURNMENT [10.37am]
RESUMED [10.58am]
PN356
THE VICE PRESIDENT: I would like to just get back to dealing with the matter in an orderly fashion. At the moment, there is an application for leave to intervene by an employee and you, Mr Nucifora, are authorised to act as the agent for that particular employee. You have raised some authorities, Mr Nucifora, in what some would say were the finest traditions of the Bar that you thought were against a grant of leave so far as you were concerned, or at least so far as your client was concerned.
PN357
I have read Formula One Catering again and refreshed my memory and I think that is authoritative and disposes of the issue that the matter does fall for consideration under 43(1), and it seems to me that an application by an employee who is going to be bound by the agreement is an application that ought be granted under 43(1), and I grant leave to the employee to intervene, now, I note you will appear as his agent.
PN358
Now, turning to the substantive matters, Mr Nucifora, do you want to go first? I have looked at Coles Supermarkets Australia Pty ltd and in particular paragraph 20. You do not have that, Ms Allen? Thanks.
PN359
MS ALLEN: I do have a copy of Coles Supermarkets, but it is just one I found. I do not have copies of the other ones that Mr Nucifora has quoted.
PN360
THE VICE PRESIDENT: No, no, that is the only one that matters at the moment. Now, Mr Nucifora, I have an outline of intentions, which is one and a half pages. Do you have a copy of that, Ms Allen?
PN361
MS ALLEN: Yes, your Honour.
PN362
THE VICE PRESIDENT: There is an argument that the agreement is not genuinely made and then there are submissions in relation to the no disadvantage test. You do not challenge now the ballot, I take it, Mr Nucifora, from what you said before?
PN363
MR NUCIFORA: I think just before we go to that, your Honour, in terms of procedural matters, we were going to table everything that we had sent - or tender everything that we had sent on 20 November, including the Outline of Submissions - sorry, 14 and 20 - and we would not oppose the employer, or if you like Ms Allen, tendering all the material that she has sent through to you today.
PN364
THE VICE PRESIDENT: Okay.
PN365
MR NUCIFORA: It does not mean we accept, of course, your Honour, we are just saying in terms of procedurally - - -
PN366
THE VICE PRESIDENT: Okay. No, you are quite right, we should deal with the evidence. Now, Mr Nucifora, I apologise for this but I do not simply have the material that you sent through on those two days, collected together as contiguous bundles. They have been separated out into bits and pieces, so it is going to be necessary to identify particular documents.
PN367
MR NUCIFORA: Yes.
PN368
THE VICE PRESIDENT: Perhaps it is convenient if we start with the employer's material first because it is a little more coherently to hand.
PN369
MR NUCIFORA: Yes, your Honour.
PN370
THE VICE PRESIDENT: Ms Allen, do you have any objection to that course, just dealing with the tender of documentary evidence first?
PN371
MS ALLEN: No, your Honour.
PN372
PN373
THE VICE PRESIDENT: The spreadsheet is annexed to an affidavit of Katie Robb of 11 November 2003, that also has a memorandum as attachment A. Do you have any objections to the affidavit of Katie Robb, Mr Nucifora?
PN374
MR NUCIFORA: No, your Honour. There are some attachments though that we have not got copies of. There is attachment A, attachment B.
PN375
THE VICE PRESIDENT: Attachment B is a summary document.
PN376
MR NUCIFORA: Yes.
PN377
THE VICE PRESIDENT: Which summarises the provisions of the Salmat agreement:
PN378
Those that are in force at Salesforce Stella and under the award.
PN379
You say you do not have that document?
PN380
MR NUCIFORA: No, your Honour. I may not need that right now. There is a question that arises under that, a question about whether - anyway, I can come back to that question - you may not actually need to see it. It is a summary document comparing the EBA conditions with the permanent award and who that was actually given to is more the question.
PN381
PN382
THE VICE PRESIDENT: Ms Allen, do your people in Melbourne have a copy of this agreement - this affidavit that is complete?
PN383
MS ALLEN: Yes, your Honour. I just need to confirm with Ms Robb. Do you have a copy of the attachments to your affidavit?
PN384
MS ROBB: Yes, I have.
PN385
THE VICE PRESIDENT: Could you make that available to Mr Nucifora please, Ms Robb? Thank you. Now, is there anything else that you seek to tender, Ms Allen?
PN386
MS ALLEN: Yes, your Honour. We will be seeking to tender two more documentation that were lodged with the Commission on Friday. One is a statement by Raquel Taylor and attachment A.
PN387
THE VICE PRESIDENT: Now, I have a statement of Raquel Taylor of 27 November 2003. Do you have a copy of that, Mr Nucifora?
PN388
MR NUCIFORA: Yes, I do, your Honour.
PN389
THE VICE PRESIDENT: I do not have - - -
PN390
MS ALLEN: Attachment A is a ballot paper.
PN391
THE VICE PRESIDENT: Yes, I do have the ballot paper. There is also a job description document.
PN392
MS ALLEN: Yes, that will be in conjunction with another statement of Katie Robb.
PN393
THE VICE PRESIDENT: Fine, okay.
PN394
MS ALLEN: Which is another documentation, sir.
PN395
THE VICE PRESIDENT: The statement of Raquel Taylor of 27 November 2003, with the ballot paper as attachment A. Do you have any objections to that statement, Mr Nucifora?
PN396
PN397
THE VICE PRESIDENT: Now, there was a further statement of Ms Robb, is that right, Ms Allen?
PN398
MS ALLEN: Yes, your Honour. It is signed - it was submitted on Friday and there was a - - -
PN399
THE VICE PRESIDENT: That is a 12-paragraph statement?
PN400
MS ALLEN: That is correct, your Honour.
PN401
THE VICE PRESIDENT: Undated. The undated statement of Katie Robb of 12 paragraphs, lodged with the Commission on Friday, 28 November 2003. Do you have any objection to that statement, Mr Nucifora?
PN402
MR NUCIFORA: No, your Honour.
PN403
THE VICE PRESIDENT: Now, it contains the - it should have as annexures the two job description documents, is that right?
PN404
MS ALLEN: Yes, your Honour. It is one job description, two pages for the customer service representative.
PN405
THE VICE PRESIDENT: Yes, fine. The statement - the undated statement of Katie Robb lodged on 28 November 2003, together with the two page job description for customer service representative as an attachment with the exhibit Salmat5.
EXHIBIT #SALMAT5 UNDATED STATEMENT OF KATIE ROBB LODGED 28/11/2003, WITH ATTACHED TWO PAGE JOB DESCRIPTION
PN406
THE VICE PRESIDENT: I think I should also mark the affidavit - sorry, the statutory declaration in support of the application for certification. There is just the one statutory declaration, I take it.
PN407
MS ALLEN: No, your Honour, there was two. There was one by an employee representative and one by an employer representative. The employer representative one is signed by Ms K. Robb and the employee representative is signed by Miss R. Walker.
PN408
THE VICE PRESIDENT: Yes, I have those two statutory declarations. Do you have any objection to those statutory declarations being marked as exhibits, Mr Nucifora?
PN409
MR NUCIFORA: Your Honour, I have one of those. That is the one of K. Robb. If they are otherwise identical, then we can - I am just wondering if there is a copy of Ms Walker's here?
PN410
THE VICE PRESIDENT: First of all, Ms Allen, are they relevantly identical as they appear to be?
PN411
MS ALLEN: Yes, they are identical with the exception of names and signatures.
PN412
MR NUCIFORA: We have no problem. That is okay, your Honour.
PN413
PN414
THE VICE PRESIDENT: Is that all of the evidence upon which you seek to rely, Ms Allen?
PN415
MS ALLEN: Yes, your Honour.
PN416
THE VICE PRESIDENT: Can I just show you two documents that I have. Are they supposed to be part of the time sheets.
PN417
MS ALLEN: Yes, your Honour.
PN418
THE VICE PRESIDENT: So those two documents form part of exhibit Salmat2. I will put them with exhibit Salmat2. So that is the evidence for Salmat. Mr Nucifora, the evidence for your client is - I have the authority of 17 November 2003. You say that has been superseded by an authority to you personally?
PN419
MR NUCIFORA: Yes, your Honour.
PN420
THE VICE PRESIDENT: Given the view that I take in relation to formula one catering, do you wish to be appearing as agent personally or do you wish that the union appears as agent?
PN421
MR NUCIFORA: That I appear personally as agent for the employee. Having said that, your Honour, there is a question - in my capacity as industrial officer of the ASU - a question that goes to whether the ASU should be bound by the agreement?
PN422
THE VICE PRESIDENT: There is an application pursuant to 170 - hang on a minute, there isn't. Is there a 170 - - -
PN423
MR NUCIFORA: Yes, that is a ..... I think, your Honour, in it was the first correspondence that went to the Australian Services Union seeking to make an application to be bound by the agreement prior to certification under a 170M(3). The day that that letter - - -
PN424
THE VICE PRESIDENT: Mr Nucifora, I must ask you to wait for a few moments while I try and sort out this unbelievable mess.
PN425
MR NUCIFORA: Sorry, it is 14 November - the letter.
PN426
THE VICE PRESIDENT: First of all, there are intentions of the ASU. There is that document which are now submissions that you make personally as the agent for the employee, Mr Nucifora, so I will note - - -
PN427
MR NUCIFORA: Yes, your Honour.
PN428
THE VICE PRESIDENT: That contains three attachments, A, B and C. Do you have that document, Ms Allen?
PN429
MS ALLEN: Yes, your Honour. Can I just confirm that attachment C was revised and it is your intention to tender the revised no disadvantage test comparison table?
PN430
MR NUCIFORA: Yes, what I thought to do - it is a supplementary table with some slight differences. I was going to tender that as a separate exhibit.
PN431
THE VICE PRESIDENT: I have a document faxed on 20 November - a contentions document with annexures A, B and C.
PN432
MR NUCIFORA: That is right.
PN433
THE VICE PRESIDENT: I have a document faxed on 21 November, which is a contentions document of 14 paragraphs. The one on 20 November was 14 paragraphs. It has an attachment A, an attachment B and an attachment C. Then I have, finally, a contentions document faxed on 24 November. It has a comparisons document as attachment C.
PN434
MR NUCIFORA: Draft 2.
PN435
THE VICE PRESIDENT: Presumably attachments A and B are the same? Draft 2. It is the one marked draft 2 is the one that matters is it, Mr Nucifora?
PN436
MR NUCIFORA: Yes. It just supplements the table that was attached to the letter of 20 November.
PN437
THE VICE PRESIDENT: The letter of 20 November being a letter to - yes, I see, I have that. Thank you. So I will disregard the contentions document and its attachments from the 20th and the 21st and mark the letter of 24 November - the outline of contentions, the draft 2 document and the attachments to the outline of contentions?
PN438
MR NUCIFORA: That earlier letter, as you say, includes a two page contentions that ought be the same as that attached to the Thursday 20 November letter. The table is different. For some reason I cannot find the letter of 24 November. I do have the letter of 20 November, and I thought that I had faxed through further material on the 24th that went to supplementary comparison table and also makes a comparison for the no disadvantage test in terms of penalty rates. What I might do is rely on the letter of 20 November as an exhibit. Of course, you already know that in terms of attachment B that we were not seeking to rely on that part of the attachment.
PN439
THE VICE PRESIDENT: Mr Nucifora, I am sorry this is still in a state of disarray here. I have a letter of Friday 28 November, which is a 3 page facsimile, a page and a half of covering letter and a fresh authority authorising you personally. Any objection to that document being marked as a confidential exhibit, Ms Allen?
PN440
PN441
THE VICE PRESIDENT: Now, returning to this business of the contentions. Mr Nucifora, it appears that there was a 54 page fax sent on 24 November. That 54 page fax, at page 35 of 54, is a letter of Thursday 20 November, which is 2 paragraph letter which attaches an outline of contentions and attachments the ASU intends to rely upon. Pages 36 and 37 of 54 are 14 paragraphs of contentions.
PN442
MR NUCIFORA: Yes.
PN443
THE VICE PRESIDENT: 38 through to 45 of 54 are attachments A, B and C so that pages 35 of 54 through to 45 of 54 appears to be a complete set of contentions, three attachments and the covering letter.
PN444
MR NUCIFORA: Yes, your Honour.
PN445
THE VICE PRESIDENT: Pages 31 to 34 of 54 is the attachment C, handwritten, with an annotation "draft 2". Do I understand what you wish me to do is to substitute draft 2 for attachment C that commences at page 40 of 54?
PN446
MR NUCIFORA: Yes, your Honour.
PN447
THE VICE PRESIDENT: I will substitute attachment C, draft 2 - do you have that Ms Allen?
PN448
MS ALLEN: Yes, your Honour.
PN449
THE VICE PRESIDENT: For attachment C in the outline of contentions and attachments from 20 November, albeit faxed through on 24 November. I should note pages 44 and 45 of 54 are facsimile transmission reports and broadcast reports and appear to have no particular relevance and I will put those to one side as well. Mr Nucifora, the 2 page, 14 paragraph contentions, faxed on 24th, together with attachments A and B, faxed on 24th and also together with attachment C, draft 2, which is 3 pages, I will staple together and subject to objection from Ms Allen mark as exhibit ASU3. Do you have any objection to those documents being marked ASU3? If you are confused as to what I am referring to, please say so.
PN450
MS ALLEN: Your Honour, you mentioned there was like 54 pages that were - my understanding, and correct me if I am wrong, the ones are seeking to be tendered is the contentions of the ASU 14 paragraphs and attachment A and attachment B and attachment, C draft 2. That is 10 pages or part thereof.
PN451
THE VICE PRESIDENT: What is the balance of it? That is a very good question. Well, first of all, do you have any objection to those particular documents that you have correctly identified?
PN452
PN453
THE VICE PRESIDENT: I note that the contentions do not have an evidentiary status to the extent that they are contradicted by Salmat. Now, as to the balance of that facsimile.
PN454
MR NUCIFORA: Your Honour, if I may, as I recall, that would have made up the authorities I think we referred to and in particular the decision in MSA Security.
PN455
THE VICE PRESIDENT: Ms Allen, the first page appears to be a cover-sheet which is missing. Page 2 of 54 through to page 30 of 54 is as Mr Nucifora says, the decision in MSA Security Officers Certified Agreement. I think it is fair - we do need to account for all these pages so you are not in the dark as to material that is being submitted. Page 1 of 54 is a cover sheet. 2 through to 30 of 54 is the Full Bench decision in MSA Security Officers Certified Agreement. Pages 31 through to 34 is attachment C, draft 2.
PN456
Page 35 is the 2 paragraph letter to the Commission of 20 November which simply attaches the outline of contention and attachments. 36 through to 39 are the contentions and attachments A and B. 40 through to 43 is the original attachment C. 44 and 45 are broadcast report and transmission report in respect of 20 November letter and its attachments. 46 through to 48 is an Office of the Employment Advocate Australian Workplace Agreements a How To Guide or at least extracts from that. 49 is the document that I have previously referred to as the petition.
PN457
That is a document signed by a number of employees complaining that the agreement was not genuinely made through proper consultation and remain opposed to its certification confirming the ballot was not conducted confidentially and voting was expected to be conducted in full view of management representatives. 50 of 54 is a letter to myself from Mr Nucifora of 14 November which refers to and reads as follows:
PN458
We refer to the above matter heard before you earlier today and attach a ...(reads)... outside the Commission. Yours faithfully...
PN459
51 is the authority from that employee. 52 is the poor quality payslip. 53 - - -
PN460
MS ALLEN: Excuse me, your Honour, can you just slow down a little bit for me please?
PN461
THE VICE PRESIDENT: Sorry, yes.
PN462
MS ALLEN: 51.
PN463
THE VICE PRESIDENT: So 50 was the letter of 14 November. 51 is the authority to the ASU of 17 November from the employee, which has been superseded by ASU2. 52 is the payslip. 53 is a transmission report in respect of the ASUs letter of 14 November, and 54 is a single page - how would you describe it - it is a single page summary in a sort of a spreadsheet style, I suppose, headed: Salmat Agreement - Penalty Rates, with the headings: Ordinary Hours Spread Penalties, Ordinary Hours Spread, Penalties Disadvantage. Mr Nucifora, that document I take it is now superseded by your attachment C, draft 2?
PN464
MR NUCIFORA: Actually, that supplements the draft 2. It is further detail on how draft 2 applies.
PN465
THE VICE PRESIDENT: Okay, fine.
PN466
MR NUCIFORA: Sorry, that was Salmat Agreement - titled: Salmat Agreement Penalty Rates.
PN467
THE VICE PRESIDENT: That is the one.
PN468
MR NUCIFORA: Yes, your Honour.
PN469
THE VICE PRESIDENT: Now, Ms Allen, I think that now accounts for all 54 pages of that facsimile. I have put aside all of that facsimile and will ignore it, other than those documents which have been marked as exhibits. That leaves the single page at the end, page 54 and ..... can I hand that down to you and see if you have got a copy of it. Have you given a copy to Ms Allen, Mr Nucifora?
PN470
MR NUCIFORA: Sorry, of?
PN471
THE VICE PRESIDENT: Yes, no, she has a copy of that document which is headed Salmat Agreement - Penalty Rates?
PN472
MR NUCIFORA: Yes.
PN473
THE VICE PRESIDENT: The single page?
PN474
PN475
THE VICE PRESIDENT: I treat it as submission only, not as evidence. So to the extent that it is contradicted by Ms Allen, it has no evidentiary status.
PN476
MS ALLEN: Your Honour, could I just - - -
PN477
MR NUCIFORA: Your Honour - - -
PN478
THE VICE PRESIDENT: Yes.
PN479
MR NUCIFORA: We were not opposed to the admission of the statements made by the witnesses in their witness statements. We were not seeking to - we did not say that we agreed with everything they said.
PN480
THE VICE PRESIDENT: No, no, Mr Nucifora, that goes without saying.
PN481
MR NUCIFORA: Yes.
PN482
THE VICE PRESIDENT: Your failure to object is a failure to object on particular evidentiary grounds.
PN483
MR NUCIFORA: Yes.
PN484
THE VICE PRESIDENT: Even though the rules of evidence do not apply, it is the practice of the Commission - at least the practice of many Members of the Commission to often apply the rules of evidence as a matter of discretion.
PN485
MR NUCIFORA: Yes.
PN486
THE VICE PRESIDENT: That opportunity and asking for you to object was merely giving you an opportunity to object to matters really on the grounds of fairness, but by reference to the grounds of objection that would usually be advanced if the rules of evidence were applied.
PN487
MR NUCIFORA: Yes.
PN488
THE VICE PRESIDENT: Because those rules are informed by practical considerations of fairness.
PN489
MR NUCIFORA: So ASU4, that would be documentary evidence, as opposed to witness evidence that may have been attached to a witness statement?
PN490
THE VICE PRESIDENT: Exhibit ASU4, I treat as a submission. It is your submission of what is to be found in the two agreements when you compare them.
PN491
MR NUCIFORA: Yes.
PN492
THE VICE PRESIDENT: So the agreements themselves are the primary evidence, they are in evidence.
PN493
MR NUCIFORA: Yes. I understand that, your Honour.
PN494
THE VICE PRESIDENT: Well, actually, you have just pointed something out. I should mark a copy of the Salmat Teleservice Pty Ltd Enterprise Agreement, which is the agreement the subject of the certification application. I will mark it in your set of exhibits, Ms Allen.
EXHIBIT #SALMAT8 COPY OF THE SALMAT TELESERVICE PTY LTD ENTERPRISE AGREEMENT
PN495
MS ALLEN: Your Honour, I just wonder if it is possible also to enter as an exhibit the Outline of Submissions that were filed on Friday as well?
PN496
PN497
THE VICE PRESIDENT: Mr Nucifora, the position is that exhibit ASU4, which is the one page Salmat Agreement - Penalty Rates document, is a submission about what one finds if one compares the agreement exhibit SALMAT8 and the award exhibit SALMAT9.
PN498
MR NUCIFORA: Yes, your Honour.
PN499
PN500
THE VICE PRESIDENT: I will treat it as a submission. Now, Mr Nucifora, are you saying there is a 170MV application for the - M(3) application for the ASU to be bound?
PN501
MR NUCIFORA: Yes, your Honour. In a letter dated 14 November, there is - and I think that has already been tendered as an exhibit - no, it may not have, sorry. The letter of 14 November was the first correspondence we received in relation to this matter and it went to - that was the letter with the attached payslip by the employee as a member of the ASU.
PN502
THE VICE PRESIDENT: That document is now - you said 14 November.
PN503
MR NUCIFORA: Yes, your Honour.
PN504
THE VICE PRESIDENT: Right. Yes, just bear with me a minute. Yes, I have that document. You say that amounts to a notification to the Commission that the union wishes to be bound by the agreement in the event that it is certified?
PN505
MR NUCIFORA: Yes, your Honour. We didn't realise up until last Friday that that was in contention, because we sought to follow 170M(3)(d) of the Act - (c) and (d) as I recall - that particular section - where notification needs to be made before the agreement is certified.
PN506
THE VICE PRESIDENT: Ms Allen, do you take any point that the union has notified the Commission that it wishes to be bound by the agreement?
PN507
MS ALLEN: Your Honour, I have no evidence that the union has notified the Commission. I can confirm that the union has notified the employer.
PN508
THE VICE PRESIDENT: The agreement is yet to be certified. So you concede that the union has notified the employer?
PN509
MS ALLEN: Yes.
PN510
THE VICE PRESIDENT: And the union is certainly notifying the Commission now. I think, Mr Nucifora, that needs to be done explicitly in writing. If you could arrange to have a one paragraph letter sent to me that would be desirable, so that there is no scope for argument in due course about whether that application is to be deferred from the letter of 14 November, because it is not explicit on the fact of the letter of 14 November. I understand that you were acting in haste on that day.
PN511
MR NUCIFORA: Sorry, your Honour, I am not sure what more I needed to say. We were acting in haste, but I thought that - drafting that letter is very similar to letters that we sent off - - -
PN512
THE VICE PRESIDENT: Section 170M(3)(c) provides:
PN513
Before the agreement is certified an organisation of employees notifies the Commission and the employer in writing that it wants to be bound by the agreement.
PN514
There is no statement in writing in the letter of 14 November that the ASU wants to be bound by the agreement.
PN515
MR NUCIFORA: Yes. So a statement to that effect - - -
PN516
THE VICE PRESIDENT: You have made it plain through your appearance today and your appearance on the last occasion that that is what you wish. Ms Allen concedes that you have notified the employer that that is what you wish. I am just saying rather than have an argument in due course about whether or not the letter of 14 November amounts to a notification, if you could send in a one paragraph notification forthwith after the hearing concludes today, that would be good.
PN517
MR NUCIFORA: Yes.
PN518
THE VICE PRESIDENT: Now, and then a separate file will be made up for that application. Now does that now conclude the evidence? Is there any document or statement that either party wishes to tender that has not yet been tendered?
PN519
MS ALLEN: Your Honour, form R29, in accordance with rule 49 which is the application form for the certification.
PN520
THE VICE-PRESIDENT: I don't think that needs to be marked as an exhibit Ms Allen. That is the document upon which the Commission acts at the moment so that is fine. Nothing further from you, Ms Allen?
PN521
MS ALLEN: No, your Honour.
PN522
THE VICE-PRESIDENT: Nothing further from you, Mr Nucifora?
PN523
MR NUCIFORA: Sorry, your Honour?
PN524
THE VICE-PRESIDENT: Nothing - no further evidence from you?
PN525
MR NUCIFORA: My understanding your Honour is that the material that we sent through earlier, apart from the decision, that that has - most of that has been covered as an exhibit including our outline of contentions and the attachments.
PN526
THE VICE-PRESIDENT: Yes.
PN527
MR NUCIFORA: Then there was a separate exhibit that went to a supplementary comparison table and our understanding - - -
PN528
THE VICE-PRESIDENT: Which is exhibit ASU4.
PN529
MR NUCIFORA: ASU4, yes.
PN530
THE VICE-PRESIDENT: There is a two-page document, one page headed: benefits, the other page headed: reductions, in the form of table agreement on the left-hand side of the table award, on the right-hand side of the table. I have no idea where that comes from. Can I just show it to Ms Allen?
PN531
MS ALLEN: Never seen this document, your Honour.
PN532
THE VICE-PRESIDENT: Okay. Ms Allen has not seen it, Mr Nucifora, so I assume it is from - - -
PN533
MR NUCIFORA: Does it have any identifying - does it identify any name, any employer's name or is it a - - -
PN534
THE VICE-PRESIDENT: No, it is a single, it is a two-page document in the form - each page is a table. One page is headed: benefits, underlined, the other page is headed: reductions. On the left-hand side of each table there's the word "agreement", on the right-hand side is a column which is the word "award" and there are various headings: ordinary hours of work, overtime, public holidays, casual workers, leave loading leave in reductions and benefits, rates of pay, minimum hours of work, breaks, redundancy.
PN535
MR NUCIFORA: I think, if that does not identify who the employer is - - -
PN536
THE VICE-PRESIDENT: No, no, I think my associate has just suggested it was probably the former associate that has prepared this document for me. I think that is probably right so we don't have to worry about that document. Mr Nucifora I'm not - at the moment your letter of 14 November is not in evidence. I note the concession by Ms Allen that the employer has been noted in writing, I will receive notification in writing from you later on today, or at least from the ASU later on today in relation to the 170VN(3) application the union wishes to make. Does that now deal with all the evidence?
PN537
MR NUCIFORA: To my understanding, your Honour.
PN538
THE VICE-PRESIDENT: Okay, fine. Yes, Mr Nucifora, why should not this agreement be certified?
PN539
MR NUCIFORA: Your Honour, I just wondered in terms of - we will be making fairly brief submissions. I wonder whether the applicant ought not go first. I'm happy to go first but our submissions will be very brief. I think we have covered - we would be relying on the outline of contentions.
PN540
THE VICE-PRESIDENT: Okay. Well, I think the prima facie - my prima facie view is that the agreement ought to be certified.
PN541
MR NUCIFORA: Yes, your Honour.
PN542
THE VICE-PRESIDENT: So I'm really asking you first to explain to me why it should not be certified.
PN543
MR NUCIFORA: Yes, your Honour. In relation to the ASU's position we rely - of course as you have mentioned exhibit ASU3. The ASU remains opposed to certification of the agreement notwithstanding the material that was made available by the company and submitted today including their witness statements. Your Honour, we say that, in terms of - as we say in our outline of contentions, we say the agreement was not genuinely made. We have a concern about - there is no evidence of material apart from what Miss Raquel Taylor, I think it was, had gone through about the process of the ballot. We still have some concerns about that and if we go to her witness statement, your Honour, it appears that Miss Walker was - sorry Miss Taylor was in close proximity. I think it refers, if I can just find her witness statement, refers to Miss Taylor being - - -
PN544
THE VICE-PRESIDENT: That is exhibit Salmat4.
PN545
MR NUCIFORA: Salmat4. Your Honour, exhibit Salmat4 at paragraph 7 - we are not thinking to either cross-examine Miss Taylor or to challenge her on other points but at item - at paragraph or item 7 it mentions, Miss Taylor mentions that: she made a specific point of always picking up my magazine and raising it so that it was covering my view of their ballot paper, suggests - and we make the suggestion that in fact, when the employer indicates that the ballot was run like we normally have ballots run, that is, you know, your state, federal and local government ballots, that someone goes into a room and in fact, that the supervisor, Miss Taylor was in fact in close proximity and it was only the magazine that was keeping her from actually seeing people actually voting.
PN546
I mean, we are not suggesting that she did actually - that we have any evidence that says that she was actually watching them as they voted. We don't have any evidence before you on that. We do suggest though that there is employees and it is an assertion we make to the table, that employees were quite likely would have been left with an impression that they were not voting confidentially, that they were in fact in front of someone who was actually - was representing the employer and we raise some doubts about that in terms of the ballot process.
PN547
Now, I will say nothing further about that except to say in terms of the process that we have a grave concern that employees were not properly notified of a comparison they would need to make with the Contract Call Centre award that is before you. Now, we all agree that that is the award of course that the comparison need to be made with. We are not sure from the statutory declaration Salmat6 that that was referred to at all. In that statutory declaration it refers to, of course, the interim award. There's no mention the consultation process that all employees were aware that they needed to make a comparison between the agreement and the proposed agreement and of course, the Contract Call Centre Award. We made the point in exhibit ASU2 - - -
PN548
THE VICE-PRESIDENT: Let me just stop you there, you say because the agreement was not compared with the Contract Call Centre Award that the employees - indeed because the Contract Call Centre Award wasn't designated until after all this had occurred, the employees didn't have a proper opportunity to determine what benefits or reductions were effected by the agreement, is that what you are saying?
PN549
MR NUCIFORA: Yes, your Honour, we are talking about the informed of consent as per paragraph 20 of the decision we referred to earlier today, the Bread Trade Victorian Interim Award that is in print T2319. In paragraph 20 there if I may quote from it. This is a Full Bench decision in 2000. It talks about the valid majority, if I may quote from it:
PN550
In the essence of the above are the valid majority of persons whose employment would be subject to the grant must have generally approved the agreement. Before such approval is given the terms of the agreement must be explained to all of the persons asked to give their approval. The need to explain the terms of the agreement is both an explicit requirement of section 179LJ(3)(d) and is implied in the concept of genuine approval. Genuine approval implies the consent of the employees was informed, that they were advised of the consequences of giving their approval to the agreement.
PN551
Now if you are a casual employee employed by Salmat, at the moment there is, regardless of what your actual payment is, your hourly rate, there is no loading. You are paid the same as - if you are a customer representative - CSRs as we have been referring to them - there is no loading so 15 per cent when you compare that with no loading, is quite significant. Now, the award has 20 - - -
PN552
THE VICE PRESIDENT: Sorry, who doesn't get a loading at the moment?
PN553
MR NUCIFORA: The casual employees. My understanding is that they do not get a loading.
PN554
THE VICE PRESIDENT; Ms Allen, is that correct? I thought the casuals got a loading?
PN555
MS ALLEN: Under the past agreement they would get a loading. I think Mr Nucifora is referring to currently. The casual employees don't get a loading now covered by the Contract Call Centre Interim Award which has no provision for a loading.
PN556
THE VICE PRESIDENT; So what is the point you are making, Mr Nucifora?
PN557
MR NUCIFORA: Well, the point is, is that at the moment they are paid exactly the same and they make up the majority of employees but they are paid exactly the same as permanent and part-time employees. Their hourly rate is the same, there is no loading. So for the majority of employees who voted this agreement up, 15 per cent is better than no loading. The award says 20 per cent now and of course 25 per cent 2004, as of 1 September 2004.
PN558
So while we are making that direct comparison we are relying more particularly on the recent authority of MSA Security and I will come back to that because I understand it was - there was a dissenting judgment and we will come back to that dissenting judgment but the majority there was that the terms of the award need to be compared with the terms of the agreement.
PN559
THE VICE PRESIDENT; But Mr Nucifora, you are running together two different - well if you don't mind if my style is to interrupt and engage Socratic interchange because I genuinely need your assistance here.
PN560
MR NUCIFORA: Yes.
PN561
THE VICE PRESIDENT; And the assistance of Ms Allen. You are running there together two different tasks, aren't you? One is whether or not the requirements of section 179LK(1) have been complied with, with the no disadvantage test. MSA was concerned with the application of the no disadvantage test undoubtedly.
PN562
MR NUCIFORA: Yes.
PN563
THE VICE PRESIDENT; One needs to consider the terms of the award which is the award that applies or the award which is designated where no relevant award applies for the purposes of determining the no disadvantage test but why does one have to consider the terms of the award when you are determining whether or not there has been a valid majority?
PN564
MR NUCIFORA: Well, it all gets back to the informed consent that we get from that decision and the Full Bench decision in T2319. To have informed consent these employees and I would have to admit including some of them who are members of ours, are not aware, were not aware, up until hopefully more recently that the permanent award is, of course, an award that applies - that is applying in the industry. We are seeking to rope Salmat nationally into and wonder in the long term - medium to long term - we would say would give them more security for their pay rates and of course terms and conditions of employment.
PN565
So the informed consent that people needed to have when they voted on this agreement, and in particular the casual employees but not just them. We have grave concerns about them. That's why we don't - sorry, to be fair in one of the affidavits Ms, I think, Robb refers to the comparison with the award being - having gone through that with three or four of the employee representatives at an EBA meeting and we say that should have happened with all employees. All employees ought to have been aware that there was a permanent award in the industry.
PN566
One that they could directly apply to them if their employer was roped in and one where they could make an - they could be informed about the relative benefit of accepting a 15 per cent loading as opposed to a 20 per cent up front or a 20 - sorry, 25 per cent as of 1 September 2004. Now, the problem for the Commission over the years since we've had section 170LKs and probably non-union agreements. Prior to that the old enterprise flexibility agreements, is the whole question of the overall - sorry, I'm going back to combining the two issues again.
PN567
In terms of the informed consent we say that the Member of the Commission, your Honour, needs to be satisfied that there was informed consent. There's no evidence before you that in fact all employees were able to make that comparison between the proposed agreement and the award. We know that - - -
PN568
THE VICE PRESIDENT: Why is informed consent in the context of a 170LK agreement satisfied by simply making the agreement available and giving the employees an opportunity to sit down and consider it provided the agreement is written in plain English and does not have any attempts to try and confuse or mislead in terms of the way it is structures or its language. This agreement is written in plain English and it is pretty straight forward.
PN569
MR NUCIFORA: Yes.
PN570
THE VICE PRESIDENT: Why isn't it informed as the employees have had a reasonable opportunity to sit down and consider it?
PN571
MR NUCIFORA: I think it is informed one way from the employers perspective and - - -
PN572
THE VICE PRESIDENT: It is a pretty paternalistic approach to the employees, isn't it? It is treating them like a bunch of idiots. That they are unable .
PN573
MR NUCIFORA: No, no. We wouldn't put it to that extreme. It is really - we are not that people that aren't properly informed are idiots and we weren't properly informed about this and we are not submitting that we are idiots in this process, but your Honour, we would refer you to paragraph 23 of Full Bench decision which goes to an agreement being that the Bakery Agreement being sold. From a quote from that: "the SDAEA" which is of course the shop -
PN574
The SDAEA had proceedings on the base that the retail agreement did not apply to...(reads)... to bakery assistants.
PN575
In this case we say that this agreement was sold to casual employees. You will get a 15 per cent loading that you'd never got before the moment you pay the same as the part-time in terms of your hourly rate and - - -
PN576
THE VICE PRESIDENT: Where is the evidence that it was sold in that fashion? Where is the employee who comes along and says: this is how this agreement was sold to us?
PN577
MR NUCIFORA: Your Honour, we were not in a position to put employee - have employees available for cross-examination for identification purposes, but we say that on the face of it that this agreement, when you've got a majority of employees who are casual employees and there is sold a benefit that they would go from zero to 15 per cent loading - - -
PN578
THE VICE PRESIDENT: They are, in fact, better off aren't they in a dollars and cents way under the agreement than they would have been and they would be if they were employed under the Contract Call Centre Industry Award.
PN579
MR NUCIFORA: Well, it - - -
PN580
THE VICE PRESIDENT: I understand this argument about whether or not that benefit more than compensates for the non financial benefits that they don't have which they would have under the award.
PN581
MR NUCIFORA: Yes.
PN582
THE VICE PRESIDENT: Putting that question aside for a moment, I mean, isn't the reality that to the extent that they were told: you'd be better off in dollars and cents. If one has to start drawing inferences about what they were told, why isn't it proper to infer to that if they were told that it was true?
PN583
MR NUCIFORA: Your Honour, I guess, we rely on a position where agreements apply not as the employer says they apply, or for that matter how the union necessarily says they apply. They apply as per the terms of the agreement. So you could, in fact, have a - if the employer could actually avoid - actually reduce someone's wages because we have a range here. A minimum and a maximum in the pay rates and we say that the employer is able to say because everyone is on different rates as I understand it.
PN584
They're not set rates between a minimum and a maximum that actually could reduce employees pay and of course there's a problem with common law on that, but under the agreement, if you look at it, they could reduce their pay and still remain within the terms of the agreement. This is the problem of comparing actual conditions and rates of pay with what the agreement says and what the award says.
PN585
THE VICE PRESIDENT: I'm having - just make that submission again?
PN586
MR NUCIFORA: All we are saying is that there is no - apart from what applies at common law, that is someone might argue as an employee breach of contract, there is no commitment to pay a specific rate. All of these employees are on different rates between the minimum and the maximum in the agreement. They could actually drop someone's rate as a result of relying on actual conditions when compared to what the agreement actually says, because there's a range of rates there. There's a minimum and there's a maximum.
PN587
THE VICE PRESIDENT: But the calculations - two sets of calculations have been done by the employer.
PN588
MR NUCIFORA: Yes.
PN589
THE VICE PRESIDENT: The first set of calculations was comparing hypothetical scenarios using the minimum rates under the agreement with the rates under the contract core centre award - - -
PN590
MR NUCIFORA: Yes.
PN591
THE VICE PRESIDENT: - - - and those calculations produced a result that demonstrated that in a dollars and cents fashion the employees were better off under the agreement. Then there is a set of calculations which are the calculations that I requested be done which are the calculations based upon the actual time that is worked.
PN592
MR NUCIFORA: Yes.
PN593
THE VICE PRESIDENT: Both of those sets of calculations show that in a dollars and cents fashion the employees are better off under the agreement. How can I accept the submission that employees might be worse off? Can you point to a particular hypothetical scenario where they are worse off?
PN594
MR NUCIFORA: We haven't got to this yet but in terms of how these employees are classified we don't agree that they are classified at grade 1 CSR under the award. We say it is grade 2 CSR. They have been incorrectly classified. So if we are using that mathematical if you like scientific approach we question that because Ms Robb has relied on in her statement a comparison with the award. If we look at the award and indicated that they are not - they don't need to have a formal qualification. That formal qualification isn't necessary. We say these people are at the 100 per cent rate, they are grade 2 contact customer service officers and - - -
PN595
THE VICE PRESIDENT: On what basis am I supposed to resolve that factual dispute then?
PN596
MR NUCIFORA: I think it gets back to - and I didn't want to hold everything up with detail but I will go to the detail if you wish - but, your Honour, you need to be satisfied when comparing the award and you have got now the job descriptions, and that is one of the benefits of having this material from the company. We do have now the job descriptions. We are not disputing that these people don't have the formal qualifications but they don't need to have that under the award. They do need to be doing the work that is listed there under the classifications in clause 18.2.1. There are indicative tasks and it is not necessary to have the formal qualifications that the company indicates. We say that they are grade 2 and this comes through in our outline of submissions. I won't go into the detail of that.
PN597
So we have a problem with that scientific approach but if we say that that is all that counts, trying to get a sample of what their actual pay rates are at a particular time before the agreement is made and then comparing it with the agreement, then even the dissenting judgment in the MSA security officers' position, Deputy President Blain does refer there to, if I can take you to paragraph 123, the second sentence in that paragraph:
PN598
The dis-assessment has been made on balance having regard to the overall terms and conditions and clearly indicates that it is not simply an arithmetic or scientific comparison.
PN599
THE VICE PRESIDENT: I accept that. I think I have already made statements of qualification to indicate that I accept that that is the correct approach.
PN600
MR NUCIFORA: Yes.
PN601
THE VICE PRESIDENT: One has to make an impressionistic assessment at the end of the day.
PN602
MR NUCIFORA: I understand.
PN603
THE VICE PRESIDENT: Can I bring you back to this CSR1, CSR2 point?
PN604
MR NUCIFORA: Yes.
PN605
THE VICE PRESIDENT: First of all Ms Allen - is there a factual contest here? Do you say that they are CSR1 employees?
PN606
MS ALLEN: Yes, your Honour, we do say that they are CSR1. We wish to rely upon the statements and the job description that has been supplied by Ms Robb, and as far as we are concerned the union has not given any evidence or reasons why it would be contrary to that.
PN607
THE VICE PRESIDENT: Okay. Mr Nucifora, why is it that you say as a matter of detail that these employees are CSR2?
PN608
MR NUCIFORA: When we look at, if I could take you to the award and - - -
PN609
THE VICE PRESIDENT: By the way, Mr Nucifora, just before you do that, I heard Ms Tkalcevic refer to the petition before. That document is not in evidence at the moment and you intended to tender it? It is tendered on the basis that the names are kept confidential.
PN610
MR NUCIFORA: I made a commitment earlier today on the basis of trying to keep the material before you a lot simpler. Now that we've got everything before you we've - just in reconsidering that, if it is admissible then it is a question of waiting. The employees involved, it is my understanding, don't resile from what they've put as, if you like, the statement they've signed off to. Given that everything now is before you and I was thinking of trying to reach a consensus with the employer on less rather than more material before the Commission, then I would have to say that we would reconsider and seek to put that in as evidence of employees having some concern - - -
PN611
THE VICE PRESIDENT: Ms Allen, do you object to its tender?
PN612
MS ALLEN: Yes, your Honour.
PN613
PN614
THE VICE PRESIDENT: Sorry, Mr Nucifora, I think you were taking me either to the award or to the agreement.
PN615
MR NUCIFORA: Yes, your Honour, firstly the award. Clause 18.2.2 is the customer contact officer level 1 which the company says is the relevant classification. 18.2.3 on the next page, customer contact officer level 2, it is our contention is the proper classification. That's the equivalent to your general clerk 100 per cent metal trades rate. As we go through that there's an argument - sorry, the submissions or the statement of - more to the point, the statement of Ms Robb explains why she believed, the company believed, employees were classified at grade 1.
PN616
THE VICE PRESIDENT: That is exhibit Salmat5.
PN617
MR NUCIFORA: Yes, your Honour, thanks for that. It says that - she says that 4, 5, and 6 explains why they are - the company believes their customer contact officer wanted them under that award. Now, as the - and she goes to the formal qualifications. We say that it is not necessary to have the formal qualification. That is in this case certificate 3 to be classified a customer contact officer level 2. When you look at the indicative task and you compare that with the job descriptions in - that is in a separate - sorry, that is in - - -
PN618
THE VICE PRESIDENT: That is annexed to exhibit Salmat5.
PN619
MR NUCIFORA: Sorry, it is annexed to Salmat5. Thank you, your Honour. That - when you look at the principle responsibilities then and you think of customer service officers working in a call centre and we say that they match up. If you look at the role definition firstly. That the customer contact officer level 2 is employed to perform the defined range of skilled operations, usually within a range of broader related activities, methods, and procedures.
PN620
Where the discretion and judgment required in selection of equipment services, then of course, it goes on to talk about received calls. Use common call centre telephone and computer technology, enter and retrieve data, work in a team and manage their own work under guidance. This employer performs a number of functions within a customer contact operation requiring adversity of competences including providing multiple specialised services to customers such as complex sales and service advice to a range of products or services.
PN621
Using multiple technologies and we would assume that most of us now including these employees here are able to use the internet and provide a limited amount of leadership to less experienced employees. We would think that the relative inexperience employees such as trainees and then their indicative tasks. They would be fairly common for your average customer service representative. I won't go through all those but they are the basics for a customer, if you like, a customer contact employee.
PN622
Now, the qualifications here at 18.2.3(c) under qualifications by equation. An employee holds a certificate 3 in telecommunications, customer contact, or equivalent would be classified as level when employed to perform the functions and the role definition and taking into account the indicative task. That just says that an employee could be classified at that level if they have that qualification. It doesn't say that they have to have that formal qualification.
PN623
THE VICE PRESIDENT: Mr Nucifora, I don't need to be persuaded that the holding of the certificate is a condition precedent to being a CSR2. It has got to do with looking at the work that the person does and seeing whether it falls within the description.
PN624
MR NUCIFORA: Yes.
PN625
THE VICE PRESIDENT: In 18.2.3(a) and (b).
PN626
MR NUCIFORA: Yes. Yes.
PN627
THE VICE PRESIDENT: Is sufficient. Okay.
PN628
MR NUCIFORA: Yes. So we look at the job description. I won't go through all of those, but we say and it even talks about OHS management system procedures but if you look at that, that looks like a fairly experienced customer contact officer. I mean, as I say, that - I won't go through all of the details there but it does say on the second page:
PN629
Call centre experience is preferred.
PN630
It does say under qualification: BCU equivalent. So you can see that they have classified them at least at level 1 without qualifications that come under the award as formal qualifications.
PN631
THE VICE PRESIDENT: Okay.
PN632
MR NUCIFORA: So as I say, I think that is self-explanatory in itself, your Honour. Once again we say we come back to that point about that you as a Member of the Commission need to be satisfied when you look at that. Of course, sometimes it is hard comparing a job description that an employer puts together in isolation of the award and I'm not saying that they did but quite often that happens. Now, you look at the award and it is hard to compare apples with pears, but there is, we say, commonality between a job description and the customer contact officer, level 2.
PN633
So if we are using that methodology we say that the signs that it isn't right because the basis of it is that the majority of his employees are not properly classified. It gets back to once again what we are saying about in terms of the process people being - employees having informed consent. I sorry, in terms of the process though, if I may just finish on that we referred to earlier the question of the quasi petition. It is a statement the people were prepared to sign off on the basis of it being if it is admissible we understand it is a question of waiting.
PN634
But we felt that we at this stage we are not in a position to do that. To clearly put, if you like, the other side of the story of these employees. Of course, that goes back to what we say in our outline of contentions in relation to the ballot process. Now, in terms of section 170LT the no disadvantage test and we rely there on our exhibit ASU3. In particular the table. If you look at that table, firstly we say the agreement says, and this is draft too of course, in attachment C that it is quite a comprehensive agreement. It is intended to exclude all other award terms and conditions.
PN635
Therefore if it is intended to be comprehensive it ought cover some of these other entitlements are in the award and they should be factored in when we are making some sort of comparison between the award and the agreement. Now, I know there has been submissions made and whether these allowances apply or not, we know that there are employees that are expected to work shift work and quite often these allowances will kick out at that time. Now, I've listed those allowances out. I won't go to all the detail but I do submit that they should be taken into account when you are comparing a comprehensive award, minimum rates award if you like, safety net award with an agreement that states that it is quite exclusive of all other conditions of employment.
PN636
In 6.1, the second page of the table we got to comparing what we believed to be the correct rate, CC02 is 100 per cent rate and of course the 17 1/2 per cent loading needs to be added to that and the company has acknowledged that they don't pay that separately, it is actually part of their hourly rate. We do raise some question about what the rates are intended to be. When you look at the agreement there seems to be two tables, there's a table at clause 6 of the 6.1 - - -
PN637
THE VICE PRESIDENT: Mr Nucifora, can I just stop you there? It is obvious you are going to take some little time yet, I think I might just take the morning tea adjournment for 10 minutes or would you prefer to be able to get downstairs have a cup of coffee, Ms Allen? Mr Hodgson?
PN638
MR HODGSON: Commissioner, I have a meeting at 1 o'clock at St Leonards, so I - - -
PN639
THE VICE PRESIDENT: You would want to be finished by then?
PN640
MR HODGSON: Yes.
PN641
THE VICE PRESIDENT: Okay. I will adjourn for 10 minutes.
SHORT ADJOURNMENT [12.16pm]
RESUMED [12.35pm]
PN642
THE VICE PRESIDENT: Yes, Mr Nucifora? You were going through attachment C, draft 2. I think we were at item 6.1. You were making the point that the CCO2 classification was the one that needed to be used for comparison
PN643
MR NUCIFORA: Yes, your Honour, and I did say that in the agreement there is some confusion about which rates are proposed to apply from the date of certification, because you have the table at 6.1 in the agreement. It says in 6.1 in the proposed agreement:
PN644
Effective from the first pay period on or after approval of this agreement by the AIRC the following rate of pay will apply...
PN645
It says that there and it gives a salary range - within the table, of course - from 15.50 to 17.50 at the first level and then through to the senior customer service representative. We say that is equivalent to the - team leader, sorry, the senior customer service representative - that table, on the last page of the proposed agreement, it talks about - after the signatory page:
PN646
Minimum wages to 1 July 2003 to 1 July 2005. Upon certification the following minimum ordinary hourly rates will apply.
PN647
And you see from 1 July 2003 it mentions $15.81. So there just seems to be - I'm not sure which total ought apply - - -
PN648
THE VICE PRESIDENT: I think the total on the last page incorporates a two per cent increase effective from 1 July. That is right, isn't it, Ms Allen?
PN649
MS ALLEN: That was my understanding as well.
PN650
MR NUCIFORA: Two per cent, okay. Because our table relies on 6.1 - the minimum rate there of $15.50, so it would need to be adjusted for that, but if that is the case, your Honour, we would say, though, that - - -
PN651
THE VICE PRESIDENT: That is explicit in 6.3.
PN652
MR NUCIFORA: Confirming that the employer could give an undertaking that, in fact, is - that the lowest rate to be paid to any employee, if the agreement is certified, would be $15.81 from 1 July 2003. But we do make this comparison with CCO2, of course, then I mentioned earlier what is the team leader at the top in the award is referred to as the principal customer contact leader. I am just trying to work out - PCCL, principal customer contact specialist or customer contact team leader - and we put the appropriate rate, and then added to that ought be the annual leave loading.
PN653
What we are saying is if we are looking at the - the company, for the no disadvantage test, is relying on one argument alone and that is actual rates of pay now and what they will be with the 2 per cent increase in that salary range, and comparing it with the award. We say that that is incorrect. They ought be classified at CCO2 and PCCL respectively and that margin, then, is a lot less. We say all of that methodology is part of an overall, if you like, consideration that the member of the Commission needs to make in determining whether they are satisfied on whether it meets the no disadvantage test.
PN654
We refer to, roughly, at the 100 per cent rate in 6.2, safety net adjustment. Of course, we don't know what it will be next year, but if you go over the last few years and it has normally been around 2 per cent, and that is secured without any concessions, maintaining the award safety net as it is. Then hours of work is a key one. We have gone through that there. I won't go through all the detail. A lot of it is self explanatory. In fact, as I understand it, the employer does not - concedes in their outline of submissions that the differences that we refer there, in this particular agreement, particularly with shift loading - and, of course, we say the allowances referred to earlier are important to shift workers, people working outside of ordinary hours - particular telephone allowances, safe travel, reimbursement.
PN655
Another matter that is not mentioned in the total here is in fact - the award allows for an extra week's annual leave for permanent night shift workers. So that ought be taken into consideration - there is an extra week's leave for those employees - that they wouldn't get here. I just may refer you, your Honour, to where that is. Ms Tkalcevic is kindly going through that. If I might come back to that, your Honour, because I don't have a lot of time now. The weekend penalty rates are there in 7.2. Overtime, if you look closely at the agreement, it talks about overtime at 20 per cent. It wasn't clear, but that is only for - at the CSR classification - whereas it ought be time and a half for the first three hours and double time thereafter, as per the award.
PN656
The public holidays - it is mentioned in the agreement that the employees can take an alternate day, which is an option in the award, but if they are working on that particular public holiday it is double time and a half loading for full time and part time employees. We have already gone through the casual loading. Sorry, just before I go any further, your Honour, it is clause 25.1.2 - the extra day's annual leave for permanent night shift employees.
PN657
MS ALLEN: Extra week.
PN658
MR NUCIFORA: Extra week, sorry. We then go to leave entitlements - sorry, skip that - we have already gone through the casual loading, if you like, earlier on - the New South Wales severance benefits are better, at this point, than the Federal, if you like, severance - known as the TCR standards, but we would have to say that is a contingent benefit. When you look at the period of service for most employees in this industry, we would quote to an average of every two years you have employees going onto another employer. I put that as an assertion. We can confirm that through survey results that we have across the industry. We know that most employees are rarely longer than two years with a particular employer.
PN659
So we say that benefit really - is a contingent benefit, in any case, but probably, at the top end isn't going to help too many - of course, at the top end, for those with longer than five or six years service the New South Wales severance benefits are certainly better. In terms of the leave entitlements we go through - there is no paid sick leave in the first three months. When compared with the award, there is the equivalent of one day - between the equivalent of one day, 7.6 hours, one to two months - two days for two to three months and the first nine months - it isn't there in that table, but the first nine months under the award it is eight days, or 60.8 hours. Twelve months is 8 days.
PN660
When you stack that up against what is in the agreement, they are certainly better off under the award. Then we refer to bereavement leave. There does not appear to be an entitlement for long term casuals. We are not sure whether there are any long term casuals as per the status of employees at Salmat in Victoria. ..... refer to the disputes procedure, there is no employee representative in the proposed agreement. In the award there is at clause 10.1.1:
PN661
Employees ..... first meet and confer with their immediate ...(reads)... including a union delegate.
PN662
I am not sure whether - I remember you referring to it, but I don't know if it was actually considered as an exhibit, but there was an extract from the Office of Employment Advocates how to guide. I think it was considered - - -
PN663
THE VICE PRESIDENT: Yes, I know the document you are referring to.
PN664
MR NUCIFORA: In that extract, your Honour, it does refer to - it ought to be a three-page extract. If I show it up on the screen you might recognise it.
PN665
THE VICE PRESIDENT: No, I have got the document, yes. That is not in evidence at the moment. Do you tender it?
PN666
MR NUCIFORA: If I may, your Honour.
PN667
THE VICE PRESIDENT: Any objection, Ms Allen? Subject to relevance, you can make - - -
PN668
MS ALLEN: Yes, relevance, sir.
PN669
THE VICE PRESIDENT: Yes.
PN670
PN671
THE VICE PRESIDENT: Subject to relevance. Yes.
PN672
MR NUCIFORA: Thank you, your Honour. I will take you to the last page of that extract. This is of course a "A How To Guide" for employers who were interested in promoting AWAs, Australian Workplace Agreements, in the workplace. It wouldn't normally be one that the union, including our union would promote as a document for members of our unions or employees generally but, if you like, it is from our point of view a conservative position, in terms of the employers obligations. On that last page under the model dispute resolution provision, it does refer to, if I can take you half way down the page, it talks about:
PN673
Prescribed Model Dispute Resolution Procedure. AWAs are required to include a DRP -
PN674
which is an acronym for a dispute resolution procedure -
PN675
in relation to any matter that may be in dispute between the parties to this AWA in the matter. The parties will attempt to resolve the matter at the workplace level including, but not limited to the employee, his or her supervisor meeting and conferring on the matter.
PN676
It goes on then to - in (b), if I may quote:
PN677
Acknowledging the right of either party to appoint in writing another person to act on behalf of the party in relation to resolving the matter at the workplace.
PN678
Now, that is in a model dispute resolution provision that is promoted by the Office of Employment Advocate. As I say, not one that we would normally as a union promote, given our position on the Office of Employment Advocate, but is one that we say ought be the minimum requirement for a dispute settling procedure, but does not refer to a union delegate, or a union representative - at least an employee representative.
PN679
Once again, that is a provision that is hard to gauge a quantity on that and it illustrates a problem we all have in trying to compare intangibles, if you like, between the agreement and the award but, nonetheless, I think it is important that this award is one that the Contract Call Centre Award - while it is a consent award, it was one that was consented to by the Australian Industry Group on behalf of members that are parties to it. It is only a recent award that was made on - I think it was operative on 1 September and the decision by Commissioner Smith was handed down, I think it was 15 August.
PN680
It isn't as widely known as we would like but, obviously, in time we hope to improve that. We don't believe even well informed employees out there in the workplace that are largely non-unionised, including Salmat in this industry, would otherwise know about that award and the details of that award. We are concerned that they were not able to sit down to make that comparison and to weigh it up. For example, if all of a sudden Salmat were to gain new contracts that meant they had to work until late at night and employees may have perceived that as being a realistic outcome, then they would have been able to sit down and compare with the award, what was in the medium to long term interests - their long term - meaning the long term interests when they were making an informed decision.
PN681
Now, as I said earlier, we don't believe that that comparison was properly made and put to all employees and if we had the opportunity earlier our union would have certainly put that to the few members that we do have within Salmat. If we were dealing with an employer that was ignorant of the whole award process and maybe there are a number of employers in this industry, your Honour, that weren't aware of what the parties were going through in the making of the consent award and now we still have ongoing conciliation with the parties that we have ourselves, the CEPSU and the NUW have dispute findings with, in relation to whether they ought be roped into that award.
PN682
Now, that includes of course Salmat and they are represented by the Printing Industry Employers' Association by Mr Tamplin, and we say that they were well informed, the employer and the employer representative, of what was going on in those proceedings. As recent as 7 November we were aware that leading up to those conciliation discussions, that the interim award had to be varied so that we didn't have a repeat of what occurred with Salesforce before you earlier in the year.
PN683
In that interim award notification ought to have been given to the union at an early stage of what was going - and of course that was raised by yourself, your Honour, when this matter was first before you, but I think it does taint the whole process that the employer and their representative followed through this, that is, that they thought on two levels, as we perceive it, that the interim award was all they needed to deal with and that when they had to they notified the union. In the context of that, as much as their submissions are very comprehensive and detailed now, we are saying that that is all too late.
PN684
We say that the greater majority of it we don't dispute in terms of their submissions of witness evidence. It actually happened. We are happy to have all the facts, even if it is only, you know, the perception of the employer at this point, but most of the facts out there - because we didn't have any of that a few weeks ago - and I think in all of that we have tried to put to your Honour that while the company relies solely on the methodology of comparing actual rates of pay and what is in the agreement, including how they informed employees, we rely on more than that.
PN685
It is difficult, we are not saying it is straightforward, but as a result of that MSA decision and other recent decisions, that the extra scrutiny the Commission has to give to section 170LK, mean you need to follow more than just the methodology of comparing actual rates of pay in the proposed agreement. You need to consider the medium to long term effect of the award, the security of the award conditions with the terms of the agreement and consider whether employees had been properly informed before they actually voted on the agreement.
PN686
We say the whole process was tainted. We don't want to hold up a potential agreement done necessarily, but we believe it should go back to a vote of members. Employees should be properly informed and when you look at some of the obvious differences between the agreement and the award, in fact, there ought be some opportunity for re-negotiation. I have not opposed - I ought register my opposition - but I haven't opposed some of the things that were said against the union in particular that we might have - there is an assertion that we might have provided some duress on an employee. Well, we hope that they actually believe that because we don't.
PN687
THE VICE PRESIDENT: Mr Nucifora, you don't need to deal with that.
PN688
MR NUCIFORA: Yes, your Honour. There are other issues that they have raised in their documentation that clearly in the context of our submission - I won't go through all the details of their outline of contentions - but we believe that employees were not properly informed, that there wasn't informed consent and that when you stack up the agreement with the award it clearly, we say, does not meet the no disadvantage test.
PN689
I think from the union's point of view we have now tendered a copy of a quasi petition and we say "quasi petition" because it is not strictly a petition in the normal sense. It is really a statement that some employees were prepared to sign off to because that is how they felt. They are not available for cross-examination, we know it is a question of waiting, but it does once again illustrate that the whole process here is tainted with at best, if you like from the company's point of view, trying to rush through a section 170LK that wasn't totally transparent.
PN690
Really now with the Commission, as we say, being obliged to scrutinise more carefully, as difficult as it is to but to scrutinise more carefully the whole process of the no disadvantage test that in the context of that we ought not be rushing in to a 3 year agreement which locks away what we believe to be a flawed agreement for all that time. Your Honour, I've got not further submissions to make.
PN691
THE VICE PRESIDENT: Thank you, Mr Nucifora. Ms Allen? You can assume that I will read your written submissions with some care.
PN692
MS ALLEN: Yes, your Honour.
PN693
THE VICE PRESIDENT: I think the thing that I would like to hear you on primarily is about this argument as to whether or not the proper classification is CSR1 or CSR2.
PN694
MS ALLEN: In light of that, may I refer to the statement of - sorry, exhibit 5 of statement of Katie Robb. Her statement does go into specific details, not just with the training but also with the indicative task of the employees. Under the award for her referring to say that 9, the contact clause in the Industry Award 2003, what the company has done in order to come to their conclusion is read through the contracts customer officer level 1 and customer contact officer level 2 and looked at the overall indicative parts of training and the major and substantiated requirements of their functions of the role that they perform at Salmat.
PN695
There are some common elements of the indicative tasks for both a CSR customer contact officer level 1 and customer contact level 2, in particular Mr Nucifora outlines that they are required to follow occupational health and safety policy and procedures. That is a requirement of both level 1 and level 2. Going through the indicative tasks, and I refer more specifically to clause 18.2.3(b)(ii) of the Award. We are not saying that the employees never perform any of those functions but the major and substantiated role that they do perform is the functions listed in customer contact officer level 1.
PN696
For example, clause 18.2.3(b)(ii) lists such things, and I refer to subclause (b), "Managed work priorities in professional development". The employees aren't required to manage all their functions of the role. There is quite a hierarchy of supervisors of team leaders and that is for the substantiated in the position description. It is attached to the statement. It requires them - and I'm referring to the principle authorities - to point 7 and point 9. Point 7 states they are required to communicate all issues to the team leader including technical faults, team related issues and improvement opportunities. Point 9 states:
PN697
Cooperate with team members and contribute to a cohesive team environment.
PN698
It is indicative that they are not required to manage a huge range of all the functions that would happen but to rely upon their supervisors and their team managers that are present at the work-site. Also point (c) of clause 18.2.3(b)(ii) - sorry, clause 18.2.3(b)(ii)(f), requires employ customer service staff. The company asserts that that is not a requirement of any of the functions that these people perform. The 18.2.3(b)(ii)(i) requires employees to negotiate with customers on major faults.
PN699
Although there is quite a heavy contact with customers, the company asserts that there is not any requirement to negotiate with customers on these faults. 18.2.3.(b)(ii)(j) requires the resolution of complex customer complaints and we assert that the employees would have team leaders and supervisors to assist in resolution of customer complaints. 18.2.3.(b)(ii)(k) requires them to process high risk credit applications and I also refer to the job description that is attached to the statement of Katie Robb. Under the principle of responsibilities, point 2 states:
PN700
Process credit card transactions as required.
PN701
An interpretation of process credit card transactions is that it is not a high risk credit application. It is simply maintaining for financial data. It is not a high risk function or high risk credit applications. Process complex accounts service severance and defaults, once again the processing of credit card transactions as required is not a complex account. Service severance and defaults is also not a requirement.
PN702
THE VICE PRESIDENT: What about (g), "Conduct a tele-marketing campaign"?
PN703
MS ALLEN: I'm not too sure what it means by a tele marketing campaign. I'm unsure what the award means when it requires that. I mean, it is correct that the employees do, you know, have inbound and outbound calls but that is a function of grade 1 of the award as well. So I'm not too sure what tele marketing campaigns meant. So that would therefore take us to the customer contact officer level 1 of the award. We look at the following indicative tasks. A lot of the indicative tasks in clause 18.2.2(b) follow occupational, health and safety policy and procedures, (b) communicate in customer contact centre.
PN704
These are ones that are shared with customer contact 2. So in order to segregate it would move to 18.2.2(b)(ii). An employee at this level would also normally perform some of the following indicative tasks:
PN705
(a) fulfil customer needs. (b) process sales. (c) action customer fault reports. (d) resolve customer complaints. (e) propose low risk credit applications. (f) process basic customer account queries. (g) collect date collection, conduct data collection.
PN706
It is asserted that that is the major and substantial role of the functions of the employees. Also in reference to that we've looked at the qualifications of the employees. For example, under, "Customer contact officer level 1", clause 18.2.2(c):
PN707
Qualifications of the award states an employee who holds a certificate 2 in communications, customer contact or equivalent would be classified at this level when employed to perform the functions in the role definition and taking into account the indicative tasks.
PN708
So we've already addressed the second part of that sentence, when employed to perform the functions, in the role definition and taking into account that the indicative tasks. It is further submitted that the employees are only ever required to hold a certificate 3 to telecommunications. That is not to say that some employees don't hold a certificate 3. Some may wish to benefit and get a certificate 3 but they are not required to have that for their job and furthermore the indicative tasks that the employees perform and the major and substantial part of their role would be the tasks as outlined in the customer contact officer level 1 of the award.
PN709
I would like now just to go through further issues that Mr Nucifora has raised. Mr Nucifora has asserted that we must not rush through this section 170LK agreement. We are asserting that, you know, it has been up for hearing for the last 4 weeks. It is not entirely a rush through.
PN710
THE VICE PRESIDENT: Ms Allen, you have made your application. You are entitled to have it determined.
PN711
MS ALLEN: Yes, your Honour. I would also like to point out the objects of the Workplace Relations Act and specifically the object of Part VIB, certified agreement, section 170L of the Workplace Relations Act states:
PN712
The object of this part is to facilitate the making and certifying by the Commission of certified agreements ...(reads)... particular circumstances whether or not that form is provided for by this Act.
PN713
It is our assertion that in creating an agreement with the employees it is filling the objects of the Act and relying on the submissions that have been filed, we assert that the contents of the Workplace Relations Act, the requirements of section 170LK, of sections 170LT - - -
PN714
THE VICE PRESIDENT: I can't immediately see how the objects are relevant, Ms Allen unless there is some dispute about the proper construction of a clause and I am required to give effect to provisions of Part VIB generally and the objects only become relevant to the extent that there is some argument about the true construction or proper effect of a particular clause and that does not seem to arise here.
PN715
MS ALLEN: No, your Honour.
PN716
THE VICE PRESIDENT: I should say I can see how, where an application of the no disadvantage test is finally balanced, that one could have resort to the objects to tip the balance in favour of certification.
PN717
MR TAMPLIN: It is just being cautious.
PN718
THE VICE PRESIDENT: Yes.
PN719
MS ALLEN: Yes, it is just an abundant caution, your Honour.
PN720
THE VICE PRESIDENT: Thank you, Ms Allen.
PN721
MS ALLEN: The ASU or Mr Nucifora on behalf of the employees have not provided any firm evidence to assert that the requirements of the Act have not been met. We have got assertions from Mr Nucifora today about the procedure of the ballot process.
PN722
THE VICE PRESIDENT: Well, it is more on assertions. I must say that the view that I take at the moment is that there is no - there is not necessarily a great tension between what is asserted in the petition that we have been referring to, exhibit ASU5, and what is in Ms Robb's statement. I can understand that people - that what Ms Robb described, if it occurred, could result in the employees having a perception that they didn't have complete confidentiality when they were making their votes. The question is whether or not the process that was Ms Robb describes was such that it detracts from the genuineness of the vote.
PN723
MS ALLEN: In terms of the genuineness of the vote, we do have first of all, the Act has no requirements for a secret ballot although in order to maintain that the employees did make a genuine agreement to the agreement, it was looked upon as having a secret ballot and that ballot was very similar to the process that the Federal Government and the State Governments would use in voting for their employees. I don't know how to - I assume that our options are to rely upon the statutory declarations and the statement that has been provided. There is nothing else that we would have to rely upon. Those are quite conclusive that the employees and some employee representatives are also here today if needed.
PN724
THE VICE PRESIDENT: How was Ms Walker selected?
PN725
MS ALLEN: That is outlined in the affidavit of Katie Robb, Salmat exhibit 3. I will take it to point 3 and points 3, 4 and 5.
PN726
THE VICE PRESIDENT: Yes okay fine, thank you.
PN727
MS ALLEN: It was technically by a vote of the employees that was -the company had confidence because it was under the process of a vote that Ms Walker was entitled to represent the employees in discussions with the employer.
PN728
THE VICE PRESIDENT: That is fine. It is just hard to classify her as a boss's stooge if she is the product of a secret vote from the employees, yes.
PN729
MS ALLEN: Furthermore, Ms Nucifora has submitted that the employees were not able to understand the agreement because they have not had enough of a comparison to their Contract Call Centre Industry Award 2003. For one, it is our submission that that is not a requirement but furthermore, even if that submission was not to stand, hold, we also like to rely upon attachment B to the affidavit and once again Salmat exhibit 3.
PN730
I mean, at the time the employees were voting on the agreement, it was undetermined as to what award it would cover for the no disadvantage test but what the company has provided to the consultative committee is a comparison of not just the Contract Call Centre Award 2003 but a number of Awards in the industry, for example, the Sales Force Award, the Stellar Award. The employees are quite aware that under the rates of pay section, the Contract Call Centre Award 2003 states 20 per cent and that under the Salmat proposed agreement, the casual loading states 15 per cent. It is quite clear even though it is not a requirement of the Workplace Relations Act.
PN731
THE VICE PRESIDENT: Yes.
PN732
MS ALLEN: Deal with the issues - - -
PN733
MR NUCIFORA: Sorry, your Honour, it is John Nucifora, your Honour. I didn't want to interrupt - - -
PN734
THE VICE PRESIDENT: So why are you doing so?
PN735
MR NUCIFORA: Because I just wanted to make sure she was saying in her submissions that I think it was in Ms Robb's statement, that employees employed representatives. Was she saying that that comparison was given to the employees' representatives?
PN736
MS ALLEN: Yes, Mr Nucifora.
PN737
THE VICE PRESIDENT: Yes. Not to all employees, to the representatives.
PN738
MR NUCIFORA: Yes, sorry, thanks, your Honour.
PN739
MS ALLEN: Also submitted in the statutory declarations filed on behalf of the company and the employee representative, that the terms of explaining the agreement were reasonable in the circumstances and we assert that the employee representatives as being voted by the employees, it was reasonable for the employer to expect that those employees had the authority to communicate the terms of the agreement on meetings, on a one-on-one basis, on whatever party was required to the employees and we assert that that did happen because at the two meetings that were held consequently, the employee representatives raised issues that the employees had raised. Now if I can just turn to the no disadvantage test.
PN740
THE VICE PRESIDENT: Are you likely to be much longer, Ms Allen, I'm just wondering whether or not we should adjourn?
PN741
MS ALLEN: No, your Honour, I just wanted to outline briefly the no disadvantage test and that would be the extent of our submissions unless anything further is necessary. There has been - Mr Nucifora has outlined that no disadvantage - or the disadvantages to the employees in reference to the agreement and that has been communicated through the draft 2 of attachment B to his - - -
PN742
THE VICE PRESIDENT: Attachment C, yes.
PN743
MS ALLEN: Attachment C? Dealing with public - dealing with his reductions, they have been addressed now in written submissions and I don't intend on going to that much further but the point I wish to make is that the no disadvantage test is one that applies overall.
PN744
THE VICE PRESIDENT: I know. You can make that assumption. I am acutely conscious of that which is why I expressed to Mr Nucifora that I was on the basis of the material that you had lodged, prima face satisfied that the no disadvantage test was met and the only real difficulty that I had arising from his submissions, which I will consider carefully, was the classification of the employees because that of course, undermines the spreadsheet which had been put in.
PN745
MS ALLEN: Yes, your Honour.
PN746
THE VICE PRESIDENT: Yes.
PN747
MS ALLEN: Is there anything else that you wish me to raise?
PN748
THE VICE PRESIDENT: No. I am happy with what you have put, Ms Allen. I mean, obviously, I will have to go away and read your submissions with some care.
PN749
MS ALLEN: Yes.
PN750
THE VICE PRESIDENT: Mr Nucifora, is there anything you want to put in reply?
PN751
MR NUCIFORA: Just very briefly, your Honour, in relation to the majority that - sorry, the classification structure once again we say that to be classified at a particular level you don't need to meet all the indicative tasks of course but we say the majority of substantive indicative tasks are typical of employees that would work at the hundred per cent rate, if you like, the Level 2, customer service representative. If not, then there are some issues that we had with the award, the award, at the hundred per cent rate. In terms of, your Honour - - -
PN752
THE VICE PRESIDENT: Well, who do you say that the Level 1 classification is supposed to cover?
PN753
MR NUCIFORA: We would say someone who has come off probation with no experience prior to the probation of the contract call centre industry.
PN754
THE VICE PRESIDENT: So your contention is that everybody who has got any experience at all, any time up, should be a Level 2, that Level 1 is effectively a probationary category?
PN755
MR NUCIFORA: In effect, your Honour, because Level 2 does talk about the employees CSR having previous experience and that would have to be significant, reasonably significant experience as opposed to, you know, a few months of another employer. All I'm saying is that - - -
PN756
THE VICE PRESIDENT: I would have thought that if the Level 1 classification was meant to be a no experience probationary classification then you would have expected it to say that.
PN757
MR NUCIFORA: If it was definitive. We would say that when you are looking at the hundred per cent rate whether it be in the clerical structure within the same award, are you talking about a general clerk with a reasonable amount of experience in this industry? There is of course the trainee rate at the first, if you like - the first level but there is no - when you look at it there is no customer contact officer, trainee level. Sorry, there is a customer contact trainee, there is a level - the Level 1 and we would say that to say the majority of employees are at Level 1 at 92.4 per cent is actually, when you compare that with a general clerk at grade 3 at a hundred per cent, and that is seriously devaluing otherwise skilled employees in this industry.
PN758
We say that Level 1 is really a step up from a trainee, someone who is in a position where they go through a probationary period. If they have got prior experience - - -
PN759
THE VICE PRESIDENT: Sorry, - the one hundred per cent is a relativity with the general clerk and the - in which award?
PN760
MR NUCIFORA: Sorry - well, in this award and in all state common rule awards, clerical and administrative officer, Level 3, the hundred per cent rate and we say that that is where the majority of employees in this industry with any experience would be classified at - the hundred per cent.
PN761
THE VICE PRESIDENT: Okay.
PN762
MR NUCIFORA: Your Honour, in relation to the other matter - sorry, the - - -
PN763
THE VICE PRESIDENT: Well, there may be an issue about - I don't know whether this is the appropriate vehicle to be determining these bigger picture issues.
PN764
MR NUCIFORA: I understand that.
PN765
THE VICE PRESIDENT: But there may be an issue as to whether or not the text of 18.2.2 and 18.2.3 achieves what you intended it to achieve when you consented to the award.
PN766
MR NUCIFORA: Yes. I think - - -
PN767
THE VICE PRESIDENT: That is, when I say "you", when the ASU consented to the award.
PN768
MR NUCIFORA: Yes. Your Honour, when we consented to the award, particularly the largest employer group being the Australian Industry Group and the employees they represented there was some synergy with a previous award, the Telecommunications Services industry Award with a very - virtually equivalent structure and from the, if you like, the ASUs point of view our state common rule was, and in particular the New South Wales' State Clerks' Award. Grade 3 is a hundred per cent rate and that is where the majority of clerical employees would be classified at if they have some significant experience, reasonable.
PN769
Now, when you look at the indicative tasks all we are saying is that it is not just a question of ticking every indicative task. Their indicative tasks - it is the same with multiplication, you don't tick a box and say: well, they have got their qualification, they have got their greater majority, if not all these indicative tasks and therefore they meet that at the particular level. We say it is not that. It is a newer point, your Honour, I take your point, it is a new award, one that we are seeking to trying to compare, if you like, apples with apples when we go to an individual employer.
PN770
But I think, once again if you look at it over all you have got things like: they work in a team. They manage their own work under guidance. Obviously they are handling all the modern technologies. There's multiple technologies they are dealing with including the internet. There was a question earlier about tele-marketing. We are not sure, I must admit - process high risk credit applications. That is one aspect that, you know, there might be an argument that does not apply to employers but that is one of the indicative tasks.
PN771
All we are saying is that employees classified at Level 2 ought not have to meet all of the indicative tasks and of course, the formal qualifications there are 18.2.3(c), but there should be - as Ms Allen has put, the majority and substantive argument. If they have got the majority of those indicative tasks and if you like, those issues that come up under the role definition, then we say they should be classified Level 2. We don't dispute the majority and substantive argument. That is what we are saying. We are saying it is not an exhaustive one where you have to meet every requirement of that classification to be classified.
PN772
THE VICE PRESIDENT: That is obvious from the use of the word "some".
PN773
MR NUCIFORA: Yes.
PN774
THE VICE PRESIDENT: I mean, that - there is no - there simply can't be any doubt about that but I think Ms Allen's point was if you go through the list - - -
PN775
MR NUCIFORA: Yes.
PN776
THE VICE PRESIDENT: - - - the vast majority of those tasks which are listed in 18.2.3(b)(ii) are not in fact performed by persons who have the job description that is annexed to Ms Robb's statement.
PN777
MS ALLEN: But they don't have to complete all of them.
PN778
THE VICE PRESIDENT: No.
PN779
MR NUCIFORA: Yes, well, we would say, your Honour, they don't have to complete all of those.
PN780
THE VICE PRESIDENT: Yes, I understand, I understand that. Okay. Anything further you wanted to say, Mr Nucifora?
PN781
MR NUCIFORA: Your Honour, just in relation to when I interrupted a bit earlier about evidence that was provided about consultation with employee representatives. I just want to make that point. There is no evidence anywhere that there was that same level of consultation with all employees, that is that all employees were properly informed about the award and the relevance of a Contact Call Centre Award. There was with the employee representative. I think there's two or three or four of those, employee representatives but there was no - there is no evidence to suggest that that went out to all employees.
PN782
THE VICE PRESIDENT: Which provision of the Act do you rely upon in saying that there is some obligation to consult with each and every one of the employees individually or as a group rather than via democratically elected representatives?
PN783
MR NUCIFORA: Well, if we go to 170LK - - -
PN784
THE VICE PRESIDENT: Or is it just the argument based upon the genuine - - -
PN785
MR NUCIFORA: Yes, it is, your Honour.
PN786
THE VICE PRESIDENT: It is the genuine majority point a la paragraph 20 of the Coles Supermarkets' case?
PN787
MR NUCIFORA: That is right, your Honour, yes. The interpretation of that section of the Act and what is informed consent.
PN788
THE VICE PRESIDENT: Yes, okay.
PN789
MR NUCIFORA: If your Honour pleases.
PN790
THE VICE PRESIDENT: Thank you, Mr Nucifora. I am obliged to have regard to the Full Bench decisions that bear upon this to reserve this decision so that I can produce some written reasons that address the no disadvantage test in some detail. I appreciate that it needs to be - that you need to have a decision promptly. I will do what I can to get something out quickly so I will reserve my decision.
ADJOURNED INDEFINITELY [1.24pm]
INDEX
LIST OF WITNESSES, EXHIBITS AND MFIs |
EXHIBIT #SALMAT2 TWO BUNDLES OF TIME SHEETS FOR EMPLOYEES WITH SURNAMES BEGINNING A THROUGH L FOR THE ST KILDA ROAD WORKPLACE AND
THE HAWTHORN WORKPLACE PN373
EXHIBIT #SALMAT3 AFFIDAVIT OF KATIE ROBB DATED 11/11/2003 WITH ATTACHMENTS A THROUGH G PN382
EXHIBIT #SALMAT4 STATEMENT OF RAQUEL TAYLOR DATED 27/11/2003 WITH THE BALLOT PAPER AS ATTACHMENT A PN397
EXHIBIT #SALMAT5 UNDATED STATEMENT OF KATIE ROBB LODGED 28/11/2003, WITH ATTACHED TWO PAGE JOB DESCRIPTION PN406
EXHIBIT #SALMAT6 STATUTORY DECLARATION OF KATIE ROBB DATED 10/10/2003 PN414
EXHIBIT #SALMAT7 STATUTORY DECLARATION OF RAQUEL WALKER DATED 10/10/2003 PN414
EXHIBIT #ASU2 THREE PAGE FACSIMILE TO MYSELF FROM MR NUCIFORA WHICH INCLUDES A ONE PAGE AUTHORITY MARKED AS CONFIDENTIAL TO ADVOCATES
FOR PURPOSES OF THIS HEARING PN441
EXHIBIT #ASU3 CONTENTIONS OF THE ASU, NOTING THEY ARE CONTENTIONS OF MR NUCIFORA, 14 PARAGRAPHS FAXED ON 24/11/2003, ATTACHMENTS A
AND B AND ATTACHMENT C DRAFT 2 PN453
EXHIBIT #ASU4 SALMAT AGREEMENT, PENALTY RATES PN475
EXHIBIT #SALMAT8 COPY OF THE SALMAT TELESERVICE PTY LTD ENTERPRISE AGREEMENT PN495
EXHIBIT #SALMAT9 CONTRACT CALL CENTRE INDUSTRY AWARD 2003 PN497
EXHIBIT #SALMAT10 OUTLINE OF SUBMISSIONS ON BEHALF OF SALMAT TELESERVICES PTY LTD PN500
EXHIBIT #ASU5 PETITION PN614
EXHIBIT #ASU6 EXTRACT FROM THE OFFICE OF THE EMPLOYMENT ADVOCATE AUSTRALIAN WORKPLACE AGREEMENTS, A HOW TO GUIDE PN671
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