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Australian Industrial Relations Commission Transcripts |
AUSCRIPT PTY LTD
ABN 76 082 664 220
Level 7, ANZ House 13 Grenfell St ADELAIDE SA 5000
Tel:(08)8211 9077 Fax:(08)8231 6194
TRANSCRIPT OF PROCEEDINGS
AUSTRALIAN INDUSTRIAL
RELATIONS COMMISSION
DEPUTY PRESIDENT HAMPTON
AG2003/717
APPLICATION FOR CERTIFICATION
OF AGREEMENT
Application under section 170LK of the Act
by Formula 1 Catering Services Pty Limited
trading as Quality Cuisine Catering for
certification of the Formula 1 Catering
Broken Hill Certified Agreement
ADELAIDE
11.26 AM, FRIDAY, 7 FEBRUARY 2003
PN1
THE DEPUTY PRESIDENT: Yes, good morning all. I regret the delay in commencement. I will take the appearances.
PN2
MR D. KLEPAC: I am a solicitor. I appear on behalf of Formula 1 Catering Services which is the applicant for 170LK certified agreement.
PN3
THE DEPUTY PRESIDENT: Yes.
PN4
MR KLEPAC: With me, Deputy President, is Mr Ellis who is the principal of the company as well as Mr Don Ellis, Mrs Sharon Rock, she is with the Ellis family and Kelly Bennett and Cheryl Nelson, two employees of the company and Mr Fraser who is a former employee of the company.
PN5
THE DEPUTY PRESIDENT: When you say employees of the company are they employees subject to the application?
PN6
MR KLEPAC: Yes.
PN7
THE DEPUTY PRESIDENT: Thank you. Yes?
PN8
MR L. HOLLAND: I appear on behalf of the SDA Union who is acting under instructions of the Town Employees Union in this matter. With me is Rosalyn Greenwood who is the secretary of the TEU.
PN9
THE DEPUTY PRESIDENT: I take it you are seeking leave to intervene, Mr Greenwood?
PN10
MR HOLLAND: Yes.
PN11
THE DEPUTY PRESIDENT: Mr Klepac, what is your attitude to that?
PN12
MR KLEPAC: I object to that.
PN13
THE DEPUTY PRESIDENT: Then, Mr Greenwood, you will need to outline a basis for your intervention.
PN14
MR HOLLAND: I am sorry I don't really understand what I am seeking leave for - for Ms Greenwood to appear, is that right?
PN15
THE DEPUTY PRESIDENT: Well, you are seeking leave to intervene in these proceedings.
PN16
MR HOLLAND: Yes, I am seeking leave to intervene in these proceedings. We have been appointed by employees to represent them as representative in relation to the certified agreement which has been proposed in this matter.
PN17
THE DEPUTY PRESIDENT: Well, perhaps in that context you might provide a little bit more detail about that. You appreciate that under the Act and in particular section 43 there are particular rules that apply to intervention in this form of application and the Commission's general discretionary rights on intervention have been proscribed to a large degree. It is a question, in my view, as to whether or no you are able to demonstrate that you fit within one of the limited grounds for intervention as set therein.
PN18
MR HOLLAND: Deputy President, I believe as a representative of the appropriate union body in this matter that I have - that we have - should be granted intervention - allowed to be granted intervention in this matter. We have instructions from the employees to do so - to do such in this case and therefore I ask that the Commission grant us that lease to appear here.
PN19
THE DEPUTY PRESIDENT: Sorry, are you asserting that you have - that presumably the Broken Hill Town Employees Union has been requested to represent a person mentioned in subsection 170LK(4)?
PN20
MR HOLLAND: Yes.
PN21
THE DEPUTY PRESIDENT: Do you have any - either material or submissions to support that?
PN22
MR HOLLAND: I have here an authority from an appointment of representative in relation to a certified agreement from a Meredith Ann Mustard who is an employee of Formula 1 Services. So I can submit it.
PN23
THE DEPUTY PRESIDENT: Thank you. Are there copies of that?
PN24
MR HOLLAND: I don't have, sir. Yes, I will organise some copies of that.
PN25
THE DEPUTY PRESIDENT: Mr Greenwood, what are your instructions with respect to whether or not the Broken Hill Town Employees Union is seeking to be bound by any agreement?
PN26
MR HOLLAND: Sorry?
PN27
THE DEPUTY PRESIDENT: What are your instructions as to whether or not the union is seeking to be bound by any agreement certified by the Commission?
PN28
MR HOLLAND: My instructions on this are that the proposed agreement does not comply with the town agreement or more specifically the Broken Hill Commerce and Industry Consent Award therefore that is what we wish to be heard on. We believe that the proposed certified agreement would not pass the disadvantage test in this matter. In this case we believe the Broken Hill Commerce and Industry Consent Award 2001 sets out the minimum rates of all businesses within the County of Yancowinna which covers over 20 industries in this area which includes, obviously, Broken Hill. We believe that has been undercut in this proposed certified agreement.
PN29
MS GREENWOOD: Deputy President, if I may?
PN30
THE DEPUTY PRESIDENT: Yes.
PN31
MS GREENWOOD: We have a matter listed before - two matters listed before the Industrial Relations Commission of New South Wales. One is a threatened unfair dismissal and the other one is a breach of award. Those matters are to be heard on 20 February - - -
PN32
THE DEPUTY PRESIDENT: By?
PN33
MS GREENWOOD: By Deputy President Sands in Broken Hill.
PN34
THE DEPUTY PRESIDENT: At what stage are - so that - is that for hearing?
PN35
MS GREENWOOD: No, compulsory conference and - - -
PN36
THE DEPUTY PRESIDENT: Right.
PN37
MS GREENWOOD: - - - presumably directions.
PN38
THE DEPUTY PRESIDENT: Thank you. Right, anything further on the intervention issue?
PN39
MR HOLLAND: Nothing further, Deputy President.
PN40
THE DEPUTY PRESIDENT: Yes, Mr Klepac?
PN41
MR KLEPAC: Deputy President, I'm not - firstly, I'm not sure who Mr Greenwood is representing. As I understand from what he said that he was appearing for the SDA as an agent and the correspondence I have been handed this morning where the SDA South Australian branch sought to be notified in relation to this agreement which it has been notified by the Commission attaches an authority from the Broken Hill Town Employees Union appointing the SDA South Australian branch as an agent in respect of a 170LJ agreement.
PN42
I might add also that in terms of coverage constitution rights my understanding irrespective of the procedures under 170LK that given the nature of the work this wouldn't be work that would come under the constitutional coverage of the SDA give that it is in Broken Hill. Particularly SDA South Australian branch. Perhaps - - -
PN43
THE DEPUTY PRESIDENT: It is my understanding that it is the Broken Hill Town Employees Union that is seeking the right to intervene the SDA are acting as their agent, as their representative. Now, if I have got that wrong, Mr Greenwood, perhaps you better - - -
PN44
MR HOLLAND: That is correct, Deputy President - - -
PN45
THE DEPUTY PRESIDENT: Sorry, Mr Holland, you better - is that - - -
PN46
MR HOLLAND: That is correct. That is the case. That is why Ms Greenwood is with me.
PN47
THE DEPUTY PRESIDENT: Thank you. Yes.
PN48
MR KLEPAC: Deputy President, any rights of intervention we saw are covered totally by section 43(2) of the Act as this is an application for certification of agreement. So any determination of any rights of intervention must be determined in accordance with that section.
PN49
THE DEPUTY PRESIDENT: Yes.
PN50
MR KLEPAC: We say that the - a photocopy of an appointment of representative which has been handed up in the name of Meredith Ann Mustard has never been communicated to the employer and in - because it has not been communicated it simply does not create any right of intervention on the part of the union this morning. Secondly, the union obviously being aware of this matter at all times had the right to seek a certificate from the Registrar under section 291. It has never been done. It has never been communicated. What is really happening here, Deputy President, is that the union is unhappy that employees have negotiated directly with its employer and this is being used as a ruse to sabotage an enterprise agreement process.
PN51
THE DEPUTY PRESIDENT: Do you say, Mr Klepac, that the communication of the apparent authorisation is a necessary prerequisite to intervention under 43(2)?
PN52
MR KLEPAC: That is right. I mean otherwise it would effectively - what it would - effectively what it would create is a union veto on the certification process. You get one - all you need is one or two people who sign a piece of paper which is dated 2 January and suddenly you can throw a few spanners in the works of any section 170LK certification.
PN53
THE DEPUTY PRESIDENT: Do you have any authority to support the proposition that the authority must be communicated and acted on which I take it is your submission. I take it you are saying that under section 170LK(4) which obviously is only a reference to the notice issued by the employer, you are saying, I take it that the organisation must act on that during that process in order to have rights to them to appear here.
PN54
MR KLEPAC: That is right because my submission, Deputy President, is that the proper construction of 170LK is in the nature of a check list with the employer and the employer has to comply with each of those steps. The positive obligation on the employer is to indicate to employees that - essentially, union involvement. If they want to have a union involved they have got that right as the legislation recognises. As long as the employer indicates that right under 170LK(4) its obligations are discharged. It only proceeds onto 170LK(5) if it is actually put in a position where it must discharge that obligation. It cannot discharge the obligation under 170LK(5) if it does not know that there is a union been appointed to bargain on behalf of an employee.
PN55
THE DEPUTY PRESIDENT: Surely that goes to whether or not the employers complied with LK(4), (5) and (6). Why does it necessarily go to whether the organisation has a right to intervene given that the intervention subsection, refers specifically to LK(4) and curiously not to (5). You would obviously have a much stronger case if it mentioned (5) or (6).
PN56
MR KLEPAC: That is right and on that level, Deputy President - on that level - I mean there are arguments on both of those levels. There are arguments in respect of section 43 and in respect of 170LK but on either level - I mean another argument, Deputy President, is where a union either by omission or deliberation choses not to fulfil a request to represent an employee then that is the union's choice. It does not impede the progression down the pathway set out in section 170LK.
PN57
THE DEPUTY PRESIDENT: Well, personally, I don't have any difficulty with that submission but I am not sure that either goes to the question of intervention given how proscriptive section 43 is.
PN58
MR KLEPAC: Well, the other question with intervention, Deputy President, is the status of the actual agreement.
PN59
THE DEPUTY PRESIDENT: Yes. When do you say this agreement was made?
PN60
MR KLEPAC: This agreement was made on 6 January. So on my submission if a request was received by the union to represent an individual employee and that request wasn't acted upon until 6 January when the agreement became a made agreement as such then any rights or if they were to have existed under section 43 had lapsed because the union didn't avail itself of the request to represent an individual employee.
PN61
MS GREENWOOD: Deputy President, if I may speak?
PN62
THE DEPUTY PRESIDENT: Yes.
PN63
MS GREENWOOD: I initially met with Mr Ellis prior to Christmas in December in regard to the drastic cut in hours of one employee and the rates of pay. On 23 December this was - Mr Ellis' response was by offering this 170LK having spoken with the Broken Hill Chamber of Commerce and presumably received advice from them. On 31 December I spoke with Mr Ellis by telephone and I told him we were representing employees. We had members and we had, obviously, persons eligible to be members of the Broken Hill Town Employees Union.
PN64
I did send Mr Ellis a letter - I am not sure of the date of the letter and I don't have a copy of it with me, in early January stating that once again we were representing employees in the matter and we were also appointing the SDA to act as our agent in Federal jurisdiction. Broken Hill Town Employees Union does not have - it is only a local union.
PN65
THE DEPUTY PRESIDENT: Are you registered under the New South Wales Act?
PN66
MS GREENWOOD: We had applied for state registration. We were granted state registration but it is currently the subject of appeal. Our state registration is under appeal awaiting the decision of the Full Bench of the Commission. Nevertheless, Mr Ellis was aware that the union was representing employees. The offer of the 170LK we believe was done to - in an attempt to avoid his obligations under the Broken Hill Commerce and Industry Consent Award which is a registered state award.
PN67
There is also - Formula 1 Catering Services provide a cook to the local war veterans home and there is the Broken Hill Aged Care Industry Broken Hill Award which is also a registered award which covers the classification of cook in the Aged Care Industry. Everything - several wages and conditions that Mr Ellis is currently paying and was previously paying is for way below the Broken Hill minimum rates. As well as entitlements. So we don't believe it would pass the no disadvantage test.
PN68
Further, there was no secret ballot conducted. If so all employees weren't made aware of that. The new agreement wasn't explained to them in relation to what they would be giving up if they were to accept a certified agreement. The change of jurisdiction and the change of terms of conditions. I can't think of anything else at the moment but we have several reasons and grounds for objecting to the approval of this certified agreement at this stage. We are willing to negotiate and we have informed Mr Ellis of that fact.
PN69
THE DEPUTY PRESIDENT: Thank you, Ms Greenwood.
PN70
MR KLEPAC: Deputy President, I think on Ms Greenwood's own admission now there is no industrial organisation of employees within the meaning envisaged by the Workplace Relations Act seeking leave to intervene. So that is another basis on which to reject intervention. Deputy President, I don't - I envisage - I see this as a procedural threshold argument over the question of intervention - - -
PN71
THE DEPUTY PRESIDENT: Indeed. Just before you proceed and if you want to take instructions about this I will understand but do you take issue with some of the facts that were just alleged and in particular I think there was an assertion that there was contact made, I think 31 December, and then a letter asserting a right to represent employees in the process and secondly, what are your instructions about the apparent appointment. Is Ms Mustard an employee subject to the agreement and any other issues that flow from that? As I said if you want to take instructions about those matters I am happy to do so.
PN72
MR KLEPAC: Well, Deputy President, on the specific question of whether there was any contact from Ms Greenwood seeking to represent employees in respect of the enterprise agreement prior to the agreement being made on 6 January. My instructions are categorical on that. There wasn't. On the issue there were discussions between - Ms Greenwood did contact Mr Ellis on an unrelated matter during that period but there was no contact or discussion or letter or any form of communication from Ms Greenwood and the entity she represents seeking to be part of an enterprise agreement process.
PN73
MS GREENWOOD: Deputy President, if I wasn't contacting Mr Ellis on the matter of the proposed 170LK I don't know what I was contacting him in relation to.
PN74
THE DEPUTY PRESIDENT: Well, look, there is obviously a factual dispute between the parties.
PN75
MR KLEPAC: Well, where is the evidence, Deputy President? Ms Greenwood is making all these assertions from the bar table.
PN76
THE DEPUTY PRESIDENT: Well, that was the point of my - - -
PN77
MR KLEPAC: Yes.
PN78
THE DEPUTY PRESIDENT: - - - trying to inquire to agree to which of these assertions were accepted because it may well be that those issues can only be resolved based on evidence.
PN79
MR KLEPAC: Well, Deputy President, it is my submission that given that the SDA Town Employees have come along today seeking intervention the onus is on them to demonstrate any substantive evidence that they have sought to represent employees and that they have had that proper authority from employees. There is no - there is nothing been produced of that standard by Mr Holland or Ms Greenwood today.
PN80
In relation to the appointment of a representative document that has been handed up, Deputy President, there is a Meredith Ann Mustard who is an employee of Formula 1 Catering, on my instructions, but there is no - I am not aware that - whether that is Meredith Anne Mustard's signature whether it was signed - - -
PN81
THE DEPUTY PRESIDENT: No.
PN82
MR KLEPAC: - - - on any of those factors.
PN83
THE DEPUTY PRESIDENT: Anything further?
PN84
MR KLEPAC: No, Deputy President. Deputy President, my submissions in summary are that the union has not established any grounds under section 43(2), and on that basis the application for intervention should be rejected.
PN85
THE DEPUTY PRESIDENT: Any response? Yes, Ms Greenwood.
PN86
MS GREENWOOD: Deputy President, I can arrange for a faxed copy of the letter to be sent down, if I'm able to have 5 minutes.
PN87
THE DEPUTY PRESIDENT: And what do you say that letter will confirm?
PN88
MS GREENWOOD: That letter will confirm that Mr Ellis was made aware that we represented employees. There is also a report in the newspaper on or about 6 January, which was a newspaper - a meeting report - having held a meeting with employees on 2 January in relation to the proposed agreement.
PN89
THE DEPUTY PRESIDENT: What do you say about the suggestion that the Broken Hill Town Employees Union is not an organisation capable of being authorised under this Act, therefore, not capable of being granted intervention?
PN90
MS GREENWOOD: Although I'm authorised under this Act, the Broken Hill Town Employees Union has existed since 1917, and the New South Wales Industrial Relations Commission certainly recognise it as being an association of the employees. As I said, we are awaiting the decision of the Full Bench in relation to an appeal against our State registration, that appeal was from HARIA and from the PSA.
PN91
THE DEPUTY PRESIDENT: When was your registration granted?
PN92
MS GREENWOOD: We were granted registration in March last year. Final submissions were put to the Full Bench n 17 December of last year and the Full Bench has reserved their decision.
PN93
THE DEPUTY PRESIDENT: What happened to your registration once an appeal was lodged?
PN94
MS GREENWOOD: Just held in abeyance.
PN95
THE DEPUTY PRESIDENT: Was it stayed, was it?
PN96
MS GREENWOOD: Yes, it was. It is just floating there in limbo. It has not been denied us and it has not actually been granted to us because of the appeal. Deputy President, I'm also organiser for the SDA for Broken Hill employees and we often ask the SDA to represent us in matters that are sort of beyond our jurisdiction, so to speak.
PN97
THE DEPUTY PRESIDENT: Well, I take it, the authority that you have handed up here though is for the Broken Hill Town Employees Union?
PN98
MS GREENWOOD: Broken Hill Town Employees Union, as a member of the Broken Hill Town Employees Union, Ms Mustard, appointed the union as her representative. It was expected that the Town Employees Union be undertaking the negotiations on behalf of the employees. Broken Hill Town Employees Union and SDA South Australia are both affiliated with the Barrier Industrial Council, the peak union body in Broken Hill, and I'm signatory to the Broken Hill Commerce and Industry Consent Award. That award applies to Mr Ellis and he continues to refuse to apply that award to his employees, and as I stated earlier, that is a matter of a section 130 dispute notification with the New South Wales Industrial Relations Commission.
PN99
THE DEPUTY PRESIDENT: Anything further?
PN100
MS GREENWOOD: Sorry, yes, if I may organise for a copy of that letter to Mr Ellis to be sent - - -
PN101
THE DEPUTY PRESIDENT: I have got another matter at 11 which I will interpose, because that won't take a great deal of time. I think in the circumstances I will allow you to organise that, as long as you will make some arrangements for you to supply a copy of that to the applicant's counsel as well.
PN102
MS GREENWOOD: Certainly.
PN103
THE DEPUTY PRESIDENT: So he can take some instructions about that and anything else during the short adjournment while I interpose the other matter. I should say that I think there are some factual issues here and that letter may go some way to advance in respect of your case. It may be also, depending on what view that I form about the operation of the Act that those factual matters may or may not be directly relevant to the intervention question that may be relevant to the question of compliance with 170LK of the Act.
PN104
I should also say that I think the question as to what is an organisation for the purposes of section 43(2) is a significant issue and, obviously, Mr Holland, given that I will be adjourning now, if you wish to make some further submissions on that, the challenge having been thrown to you, then, there will be a limited opportunity to do so, but I must say I think that looms large as an issue for your intervention application, so unless there is anything further at this juncture? Then I will adjourn the matter - I will interpose the other matter and return to this as soon as I'm able to.
SHORT ADJOURNMENT [11.57am]
RESUMED [12.39pm]
PN105
THE DEPUTY PRESIDENT: Yes, Mr Holland.
PN106
MR HOLLAND: If I could initially ask for an adjournment on this issue, given that it is a complex legal issue to obtain further counsel on this matter. Given that it was not expected to crop up, I ask that the matter be adjourned, Deputy President. In the alternative I can proceed on the basis of what I believe would be arguments for the organisation, why TEU should be classed as an organisation.
PN107
THE DEPUTY PRESIDENT: Mr Klepac.
PN108
MR KLEPAC: Deputy President, I object to any adjournment. We have complied - our submission is we have complied with all the steps for certification of an agreement. We are ready to have that agreement certified subject to the Commission satisfying itself of the tests. There is no question - Mr Holland is, presumably, an employee or officer of the of the SDA. The union was well aware of these proceedings, given that it actually wrote to the Registrar on 31 January. There is simply no basis for that adjournment request.
PN109
MR HOLLAND: Deputy President, if I may, section 170LK(5) does say that there is an opportunity to meet and confer, it would be our submission that this has not taken place. It does say if an organisation is so requested to represent a person the employer must give the organisation a reasonable opportunity to meet and confer with the employer about the agreement before it is made. We would argue this has not been done on this occasion, Deputy President.
PN110
THE DEPUTY PRESIDENT: That surely though goes to the merit or otherwise of the principal application not directly to the intervention questions. Look, Mr Holland, I agree with you it is a complex matter but I think in the circumstances what Mr Klepac submits is essentially correct. That is you have sought intervention in the matter. You have perhaps not been on notice that all the issues would arise that have arisen would do so but I think in the circumstances, and particularly given that the applicant is here ready to proceed with significant numbers of interests ready to proceed, I think it is appropriate that you advance some - whatever approach you wish to in support of your intervention argument.
PN111
MR HOLLAND: If I can start with, perhaps more for my benefit than for Deputy President, but if I can start with the appointment of a representative in relation to a certified agreement which has been provided to all the parties in relation to Meredith Ann Mustard. Meredith Ann, under section 170LK(4) Part A is an employee whose employment is actually subject to the agreement which has been put before the Commission.
PN112
Now, under subsection B, as I said, this is probably for my benefit but if you would bear with me, under subsection B the organisation is entitled to represent her in these industrial interests. Now, this has been done. She has appointed the TEU as the organisation to act on her behalf. We turn now to section 43 which talks about intervention generally. Now, it is quite specific in what it says. It says:
PN113
The Commission must on application grant leave to intervene to any organisation of employees that was requested to represented a person as mentioned in subsection 170LK Part IV.
PN114
Now, we have already established that that has taken place with the authority given to us by Meredith Ann Mustard in this matter.
PN115
Now, we then turn our heads to the question which has been put before us which basically says "in relation to an organisation". Under the Act an "organisation" is an organisation that is registered under this Act. This is obviously where we have come to a bit of a stumbling block. The TEU has - a registration has been stayed. Currently it is before the New South Wales Full Bench. It clearly has an interest in this agreement. An interest which we have highlighted in a letter that has been faxed to the Director of Formula 1 Catering, which I now provide to the Commission.
PN116
You will note the letter dated 6 January 2003 actually sets out the TEU is representing - does have an interest in this matter for the purposes of the proposed certified agreement. Now, that letter is dated 6 January 2003. There has nothing been concealed. There has been no other correspondence to say - or surprise on behalf of the employer that the TEU actually does have an interest in this matter. Therefore, I would probably say that clearly indicates that TEU has an interest in this matter.
PN117
Furthermore, I think that one of the areas that perhaps I can't comment on that has been drawn to my attention is the history of organisations in the Broken Hill region and more specifically the County of Yancowinna. Now, the Broken Hill Commerce and Industry Consent Award 2001, which we have quoted on three or four occasions already today, that is affectionately known as the "Town Agreement". Now, this is the minimum rates award for all industries in that county of which Broken Hill is part of.
PN118
Now, this award, which is registered, does actually cite the relevant body in this case which is the restaurants, fish shops and cafes where meals and the TEU is cited. In this registered agreement, which, like i said, specifically relates to the county of Yancowinna. Now, furthermore, I believe it is common practice and I will ask Ms Greenwood to speak on this, that quite a number of the unions in the Broken Hill region do not have the registration under this Act which is actually - it has been the practice over a number of years that they don't have registration under this Act.
PN119
Now, the practice has been - despite this, the Commission, the New South Wales Industrial Commission has heard matters at conciliation and arbitration on this basis. Now, the TEU is currently seeking registration under this Act and therefore we believe it would be unfair and unjust to now allow us intervention in such a matter as today. Now, I will just ask Ms Greenwood to speak on behalf of the history of the unions up in the Broken Hill Region.
PN120
THE DEPUTY PRESIDENT: Before you do that, I need to be clear that the authorisation and the organisation that you say applies is the Broken Hill Town Employees Union.
PN121
MR HOLLAND: That is right.
PN122
THE DEPUTY PRESIDENT: As opposed to any other - you are not claiming the SDA?
PN123
MR HOLLAND: No, not at all.
PN124
THE DEPUTY PRESIDENT: Yes, Ms Greenwood.
PN125
MS GREENWOOD: Thank you, Deputy President. As I stated earlier, the Broken Hill Town Employees Union was formed in and around 1970 and has existed since that date, actually the restaurant section was one of the first sections of the Town Employees Union. Since 1923 we have had the Barrier Industrial Council, that still exists as an unregistered organisation but is recognised as a peak union body. Previously, there was the Shop Assistants Union, which was also unregistered, but they amalgamated with SDA. There was the WIUA which was the Workers Industrial Union of Australia, also unregistered, they now come under the umbrella of CFMEU.
PN126
Several other unions, we have local MEU, Municipal Employees Union, they are unregistered. We have Silverton Tramways Employees Association, previously registered but they have only nine members so they have decided the paperwork was not worth it and a number of unions that existed locally. This has come about because the County of Yancowinna is excluded from State Acts - sorry, State awards and we have always negotiated our own agreements within the County of Yancowinna and the Industrial Relations Commission has always recognised the local unions and has, as Mr Holland stated, have conciliated and privately arbitrated on a number of matters over the last seven or eight decades.
PN127
The Full Bench - I was hoping to seek further clarification on the status of our registration application from the Industrial Relations Commission but I have not been able to receive a return call from them at this stage. The Deputy Industrial Registrar, Andrew Musgrove was the person who heard our State application and who subsequently handed down his decision which was in favour of granting state registration. As I said, two unions have appealed against that registration and that is now - we are waiting on the reserve decision of the Full Bench of the Industrial Relations Commission of New South Wales.
PN128
In September last year I appeared in Sydney before the Full Bench of the Industrial Relations Commission on the matter of 2002 State wage case application to the consent award. The Broken Hill Chamber of Commerce had lodged an application under one of the of the principles of the State wage case - I am not sure which one it is now - in regard to economic incapacity.
PN129
A number of employers had attempted to introduce certified agreements under 170LK and they were the subject of an interim order from Deputy President Sands - an injunction against the proposed secret ballots being held before the 2002 State wage case matter was heard. The employees were trying to introduce the 170LKs while the rates of pay were still at 2001 level and thereby reducing the employees entitlements to receive the minimum wage increase under the State wage cases.
PN130
THE DEPUTY PRESIDENT: Just as a matter of interest, what was the outcome of the State wage case?
PN131
MS GREENWOOD: The outcome - the Full Bench brought the matter of the State wage case on the economic incapacity case on prior to the interim orders expiring and they handed down their decision - I do have a copy of that decision which I could hand up.
PN132
THE DEPUTY PRESIDENT: Yes, if you have one.
PN133
MS GREENWOOD: The Chamber of Commerce appealed Deputy President Sands' authority to impose the interim orders and that appeal went all the way to the Attorney-General and it was subsequently dismissed and obviously the interim orders stood and the Chambers claim was the Deputy President did not have jurisdiction to impose the injunction against the Chamber of Commerce.
PN134
THE DEPUTY PRESIDENT: What happened to the application or otherwise of the State wage case principles?
PN135
MS GREENWOOD: That was granted and where it was recognised that the negotiated wage increases into the Broken Hill Commerce and Industry Consent Award was to be an automatic flow on of the State wage case increases, it has now been inserted into the award that they apply on application to vary at the time the State wage cases are handed down, State wage case decision and the absorption principle, which was the main argument with the Chamber of Commerce, has been included into this consent award so basically confirmed the fact that it is the minimum rates award that applies to various industries in the City of Broken Hill and the County of Yancowinna. Just to explain the County of Yancowinna is an area of about 50 - - -
PN136
MR KLEPAC: Deputy President - - -
PN137
THE DEPUTY PRESIDENT: Yes, Mr Klepac.
PN138
MR KLEPAC: I do not - whilst I am maintaining the objection about intervention and I understand that Mr Duffy[sic] and Ms Greenwood are making submissions on their right of intervention, it does seem that Ms Greenwood is going someway from the whole point that I understood they were making about whether the TEU was a registered organisation or not. I am concerned about the time because all these people - well, the two employees and Mr Ellis have come from Broken Hill.
PN139
THE DEPUTY PRESIDENT: I understand. Ms Greenwood, you might confine your comments - - -
PN140
MS GREENWOOD: I am sorry, I didn't mean to waffle. It is a very unique case and actually the decision of the Full Bench was also quite a unique case at the time. The TEU exists as an organisation. We have been recognised by the New South Wales Industrial Relations Commission and certainly by the Broken Hill Chamber of Commerce. There is an existing award that applies to the industry and TEU is a respondent to that award. Formula 1 Catering Services, as I understand it, is a member of the Broken Hill Chamber of Commerce which is also a respondent to that award and Mr Holland asked earlier, we are seeking further counsel in regard to our status as an organisation under the Act.
PN141
THE DEPUTY PRESIDENT: All right. I understand that, thank you. Anything further, Mr Holland?
PN142
MR HOLLAND: No, nothing further.
PN143
THE DEPUTY PRESIDENT: Mr Klepac, there may be some further material you wanted to respond to there.
PN144
MR KLEPAC: Yes. Just a point about the Town Employees Union, I am in a difficult position of trying to prove a negative in that during the adjournment we contacted the Registry and our instructions from the Registry is that there is no Town Employees Union registration in the New South Wales State Commission. I understand that my friends here are trying to make submissions and draw inferences and what not but the relevant issue, it is quite simple for Ms Greenwood to prove the Town Employees Union is a registered entity.
PN145
Every entity in the New South Wales State Commission has a registration that is recognised. Quite a simply matter for Ms Greenwood to fax that registration if it indeed existed, it does not. Anything that Ms Greenwood has said does not avoid the fact that that registration simply does not exist. The other issue I wanted to address, Deputy President, was the question of this notification and whether that enlivens any rights of intervention.
PN146
THE DEPUTY PRESIDENT: You mean 6 January letter?
PN147
MR KLEPAC: 6 of January letter taken in conjunction with 2 January letter. Firstly, that 2 January letter, on my submission, does not even establish that it was a legitimate request. Where is the proof that this is Ms Mustard? Where is the proof that this request wasn't withdrawn? The legislation, in its terms is quite clear, any duty to consult lapses if a request is withdrawn. Presumably, it would have been quite within the power of the Broken Hill Town Employees Union entity to have made a formal request indicating that it had members who wished to have it represent them in the context of negotiating an enterprise agreement.
PN148
The 6 January letter does not say that on its face. All it says is that the BHTEU has asked the SDA to represent it in the negotiation of a new agreement. It does not say that Meredith Mustard, or any other employees, have asked it to represent it. The first paragraph of that letter, which says that BHTEU represents employees does not indicate that they have been requested to represent them in the context of an enterprise agreement negotiation. The other factor, which we submit, Deputy President, comes into the established authorities in this area, particularly the Mervac Hotels decision is that this letter, which is dated 6 January, was forwarded to the employer after the agreement had been voted on and made.
PN149
THE DEPUTY PRESIDENT: On the day?
PN150
MR KLEPAC: Well, my instructions are that whilst it is dated 6 January, it was received sometime afterwards.
PN151
THE DEPUTY PRESIDENT: The date of the agreement, I think - - -
PN152
MR KLEPAC: The agreement was made on 6 January.
PN153
THE DEPUTY PRESIDENT: What occurred on 6 January?
PN154
MR KLEPAC: The vote, the agreement was voted on and ratified by the employees and the vote occurred at 9.30 am on the morning of 6 January. So we submit that even if you were to say that this letter of Ms Greenwood's constituted a request to represent particular employees under enterprise bargaining, it is no longer valid along the same line of reasoning in the Mervac Hotel's decision and other decisions of that nature. So those are my responses on those issues, Deputy President.
PN155
THE DEPUTY PRESIDENT: Thank you.
PN156
MR KLEPAC: Other than to say, presumably this letter was faxed, as Mr Duffy[sic] has indicated - - -
PN157
THE DEPUTY PRESIDENT: Mr Holland.
PN158
MR KLEPAC: Mr Holland, I am sorry, presumably the union would have had a fax receipt with that to prove that it falls within that time period. Thank you, Deputy President.
PN159
THE DEPUTY PRESIDENT: Mr Holland, any right of reply you want to exercise?
PN160
MR HOLLAND: Yes, Deputy President. I do not think there is any obligation on the union actually to state in the letter dated 6 January 2003 who the actual employees that we represent are in that letter. There is no requirement under the Act which my learned friend said that it should have actually stated that Ms Mustard was actually one of the employees in this matter. I would simply highlight, a we have said, given the history which Ms Greenwood has gone through, we can't go past that and for that reason we should be classed as an organisation in this process.
PN161
THE DEPUTY PRESIDENT: Thank you.
PN162
MS GREENWOOD: Deputy President, I just have one query, within the 14 days supposed notice offering the proposed agreement there were three public holidays, are they excluded from the 14 days notice?
PN163
THE DEPUTY PRESIDENT: Again, I think that is a question to go to the merit of the application.
PN164
MS GREENWOOD: Yes. Also, Ms Mustard confirms that she was not made aware of any ballot and she has not been asked to participate in any vote.
PN165
MR KLEPAC: Well, Deputy President, I have interjected but I do object to Ms Greenwood making what seems to be quite sweeping assertions from the bar table. I mean, she has made assertions about what has gone on with the agreement. She has made assertions about coverage rules and registrations. I mean, I think there is - I think, as union officials, there is a proper process to follow and if there is evidence that can be brought - but there's been no evidence brought.
PN166
There was one other point I wish to correct. I wasn't suggesting that particular employees should have been named, I was suggesting that 6 January letter does not actually indicate that the BHTEU entity was requested to represent any individual employee and secondly, as Mr Holland would be aware, under section 291 of the Act the union at all times had the capacity to obtain a certificate from the Registrar, if there was any issue about confidentiality or the like in respect of employees. If the Commission pleases.
PN167
THE DEPUTY PRESIDENT: Mr Holland, are you desperate to get to your feet?
PN168
MR HOLLAND: If I can just have a moment?
PN169
THE DEPUTY PRESIDENT: Yes.
PN170
MR HOLLAND: Deputy President, in the alternative it has just been drawn to my attention, under section 42.3 in relation to counsel, a party may be represented by counsel, solicitor, or agent. I have here, unfortunately I don't have copies of this, appointment of a representative in relation to a certified agreement that the undersigned, which is Meredith Ann Mustard, appoints the shop distribute of an allied employees association to be presentative in relation to making approval, variation or termination. Now, I will provide that to you, if I can get copies of that.
PN171
THE DEPUTY PRESIDENT: Well, Mr Holland, the only difficulty with that is the whole intervention case has been mounted on one proposition and you appreciate that I have confirmed with you I think at least twice, if not three times.
PN172
MR HOLLAND: I understand the question. It merely is an argument in the alternative and I simply put that before the Commission on the basis that our member is desperate for us to represent her in the matter of the certified agreement which is presently - or the certified agreement before the Commission.
PN173
THE DEPUTY PRESIDENT: When do you say that authorisation was provided?
PN174
MR HOLLAND: It is dated 2 January 2003. Now, I put this argument obviously in the alternative to the arguments to which we have just presently put before the Commission.
PN175
MS GREENWOOD: Deputy President, if I may just explain, the dual authority there is because we are well aware of the fact that we don't have Federal jurisdiction as Broken Hill Town Employees Union and that we would require a nationally registered union to represent us in this matter. I could also obtain statutory declarations from Ms Mustard if that is - or affidavit, if that is required.
PN176
MR KLEPAC: Well, Deputy President I only have one submission about two letters dated 2 January. One from the SDA and one from the BHTEU entity. To me, it seems very strange that two unions have both been asked to sign a - have both signed up the same person on 2 January and neither of those have been communicated. It seems very much like this is all - this paperwork is being put to you from the bar table today solely with the intention of derailing a certified agreement. Exactly who is Ms Mustard if, in fact, she was making a request, who was requesting to represent her?
PN177
THE DEPUTY PRESIDENT: Do you have copies of that, Mr Holland?
PN178
MR HOLLAND: Yes, I have copies of both the originals, Deputy President.
PN179
THE DEPUTY PRESIDENT: Yes, well, look that seems, on face value, raise a whole raft of other issues including one that Mr Klepac has just alluded to in the sense of: can one employee appoint two representatives under the Act? I think I'm going to need to consider this issue, I would have in any event have considered. Mr Klepac, do you want to advance anything in the alternative in respect of whether the SDA which, of course, is a Federally registered organisation?
PN180
MR KLEPAC: Well, I would only say, Deputy President, that Mr Holland and Ms Greenwood came along this morning and the application is to intervene on behalf of the BHTEU entity and the material that has been put before you suggesting that the SDA was appointed to represent Ms Mustard should only be considered in the context of the application to intervene on behalf of the BHTEU given that that is the basis on which Mr Holland and Ms Greenwood put their case today. If the Commission pleases.
PN181
THE DEPUTY PRESIDENT: Anything further?
PN182
MR HOLLAND: No, nothing further.
PN183
THE DEPUTY PRESIDENT: All right, well, look I will need to consider what you have put. I think in the circumstances the best course of action would be to adjourn for lunch and I will resume at 2 o'clock or as soon thereafter as I'm able to come back to you.
LUNCHEON ADJOURNMENT [1.12pm]
RESUMED [2.14pm]
PN184
THE DEPUTY PRESIDENT: Thank you all, please be seated. Yes, I've considered what has been put to me today on the question of intervention. The application to intervene raises a number of major issues including the status of the Broken Hill Town Employees Union and/or which union, if any, was authorised by Ms Mustard. There are a number of hurdles to the intervention application but I have not yet had time to fully consider them. Accordingly, I'm not in a position to form a concluded view on the intervention question and this ideally would be done prior to any further proceedings.
PN185
I am, however, conscious that the employer representative or, at least, one of the employee representative and two of the employee representatives have attended from Broken Hill and the applicant has attended today with interstate counsel on the expectation that the matter would proceed. In the circumstances I have determined that I will reserve my decision on the intervention question but I will today hear the applicant on all aspects of the 170LK application.
PN186
I will not, however, determine the agreement application until I have determined and ruled upon the intervention question. What that means is this. Firstly, I will hear the applicant on all aspects of the section 170LK application now. In that context, I note that there are a number of issues that I will need to pursue which arise on the face of the application. I think that that is best done in any event. Secondly, the union will not be entitled to be heard on the merits or to further participate in these proceedings today pending a determination of the intervention question. They may, however, stay and observe the proceedings.
PN187
Thirdly, in the event that I do subsequently determine that the intervention application should be granted then I will subsequently organise a genuine opportunity for them to present a case on the merits of the section 170LK application and rights are reserved in that context. Lastly, however, if I do determine that the intervention is not to be granted then I will determine the section 170LK application based on the material that is by then properly before the Commission. I appreciate that this is not an ideal way of dealing with the matter but, in my view, the interests of justice dictate this appropriate and in my view it is not prejudicial for the interests of either party. Mr Klepac?
PN188
MR KLEPAC: Thank you, Deputy President. I have got my paperwork in somewhat of a mess now. Deputy President, I understand the statutory declaration and the agreement is before you?
PN189
THE DEPUTY PRESIDENT: Yes, it is.
PN190
MR KLEPAC: In terms of the steps laid down by section 170LK, it is my submission that each of those steps has been met by this application. If I could go through those steps in detail. On 23 December a notice was issued to all employees indicating an intention to reach a certified agreement. If I may hand up a copy of that notice.
PN191
THE DEPUTY PRESIDENT: Thank you. Perhaps, Mr Klepac, whilst there are other documents before the Commission I will mark this for identification - - -
PN192
MR KLEPAC: Certainly.
PN193
PN194
THE DEPUTY PRESIDENT: Mr Klepac, what are your instructions as to how that was delivered to employees and who was in receipt of it?
PN195
MR KLEPAC: My instructions are, Deputy President, that a meeting was held with all the employees and Mr Ellis gave each of the employees a copy of this letter and a copy of the then proposed certified agreement.
PN196
THE DEPUTY PRESIDENT: I think the statutory declaration reveals a reasonable number of casuals employees.
PN197
MR KLEPAC: Yes.
PN198
THE DEPUTY PRESIDENT: When you say a meeting of employees was held, what are your instructions about that?
PN199
MR KLEPAC: Well, my instructions are, Deputy President, is that the workforce that is proposed to be covered by the agreement are employed as casual employees in their entirety. The nature of the Formula One business is that it is a catering business that provides meals principally from the Broken Hill Musicians Club but also from a cafe and I believe a nursing home in Broken Hill as well. Given that it is operating out of a number of locations in Broken Hill and given that the demand - the business is very cyclical and subject to demand and hence the casual employment.
PN200
At the same time, it is possible given the defined geographical area in which the business operates to organise a meeting of all the employees and that, in fact, is what Mr Ellis did. Can I just confirm that, Deputy President?
PN201
THE DEPUTY PRESIDENT: Yes.
PN202
MR KLEPAC: That is correct, yes.
PN203
THE DEPUTY PRESIDENT: So all employees who were - - -
PN204
MR KLEPAC: As at 23 December, yes.
PN205
THE DEPUTY PRESIDENT: - - - employees were invited and attended the meeting?
PN206
MR KLEPAC: Yes. So we submit, Deputy President, that document A1 shows the steps that are required in terms of notification were discharged. That all relevant employees were provided with a copy of the enterprise agreement. All employees were encouraged to raise any matters that they might have had about the enterprise agreement and they were also - in the last paragraph as it is set out there, informed of their rights to have a trade union involved in the enterprise agreement negotiations.
PN207
Further to that, we say the 14-day notice period was discharged because a vote of all employees was conducted on 6 January and of all the employees on 6 January the agreement was ratified with one abstention at that time.
PN208
THE DEPUTY PRESIDENT: What are your instructions about the nature of that ratification process, to use your term?
PN209
MR KLEPAC: Well, Deputy President, each employee was issued with a ballot paper where they could indicate the "yes" or "no" vote and then a vote was tabulated on the basis of those ballot papers. I have copies of those ballot papers and I will tender those.
PN210
THE DEPUTY PRESIDENT: Very well.
PN211
MR KLEPAC: There is one ballot paper that was not returned and that was from one of the employees, Ms Mustard, and Ms Mustard indicated that she wished to abstain from the vote.
PN212
PN213
MR KLEPAC: In terms of the procedural requirements of section 170LK we would submit that exhibit A2 demonstrates that there was a valid majority in favour of the agreement. LK(2) was met by way of exhibit A1. LK(3), again, was met by way of exhibit 1. LK(4) was met by way of exhibit A1. LK(5) did not arise prior to the agreement being voted upon and in total, Deputy President, we say that the procedural steps as such have been discharged. Unless you have any further questions on the procedural aspects, Deputy President - - -
PN214
THE DEPUTY PRESIDENT: Well, just in relation to 7 - - -
PN215
MR KLEPAC: Yes.
PN216
THE DEPUTY PRESIDENT: - - - what are your instructions as to what measures were undertaken in that regard?
PN217
MR KLEPAC: Well, perhaps if I could answer 7 and at the same time partly address the "no detriment" question. It was clearly explained to the employees by Mr Ellis that what was being proposed was to operate Formula One Catering in close conformity, well, following the South Australian Award and some of the employees did make further inquiries as to which award was better, or which award they preferred and, in fact, I'm instructed by Mr Ellis that at least one of the employees was provided with a copy of the South Australian Award as well as the Broken Hill Award and encouraged to take it home and read through it.
PN218
In addition, Mr Ellis tells me, Deputy President, two of the staff members who are under the age of 21 were asked by Mr Ellis if they wanted to take the paperwork home and have their parents go through it with them. So we would say those particular responses to questions about the agreement, as well as the initial process of handing out the agreement and meeting with the employees would discharge the onus of LK(7).
PN219
THE DEPUTY PRESIDENT: Are you instructed that only one person sought a copy of the South Australian Award?
PN220
MR KLEPAC: I believe that is right - I'm sorry, it was two. Mr Ellis also tells me that he told all the staff members that he had a copy of the South Australian Award on his desk and he had indicated to the employees that it was available for them to have a look at if they wanted to.
PN221
THE DEPUTY PRESIDENT: Perhaps if we deal with the agreement itself? I think you are going to talk about the agreement and its relationship to the safety net award, is that - - -
PN222
MR KLEPAC: Yes.
PN223
THE DEPUTY PRESIDENT: All right, well, then I will save my questions in that respect.
PN224
MR KLEPAC: If I may hand up a copy of the current rate schedule for the Broken Hill Award and the South Australian Award.
PN225
THE DEPUTY PRESIDENT: Thank you.
PN226
MR KLEPAC: Excuse me, Deputy President, Mrs Rock has child-minding duties, may she be excused?
PN227
THE DEPUTY PRESIDENT: Certainly, I understand.
PN228
MR KLEPAC: In my submission, in relation to a comparison of the awards is that awards obviously cover the same field or area of work and but for the fact that this work is in Broken Hill, the South Australian Award would apply to these employees. It is important to consider these awards in the context of the particular work patterns that apply to Formula One Catering. My instructions are that the employees do regularly work weekends and do work evenings and because of that factor the South Australian Award is a considerably more attractive proposition to the Broken Hill Award.
PN229
Under the Broken Hill Award casual employees receive a loading of 25 per cent for ordinary hours and receive a loading of 50 and 75 per cent respectively for Saturday and Sunday. Whereas under the South Australian Award, as you can see from the description of casual employees, the Saturday rate becomes 170 per cent for work after 1 pm and 220 per cent for work on Sundays. So because of the nature of the business that Formula One Catering is involved in and given that the bulk of its work is at the Musicians Club employees, under this agreement, will do substantially better out of the superior penalty rates or rates generally contained in the South Australian Award.
PN230
THE DEPUTY PRESIDENT: The rates schedules that you have supplied in relation to the South Australian Award, 17 July 2002, that has the 2002 safety net adjustment, is that also the case with the Broken Hill Award?
PN231
MR KLEPAC: Yes, it is.
PN232
THE DEPUTY PRESIDENT: Very well, thank you.
PN233
MR KLEPAC: In other respects, Deputy President, I would submit that one factor may be that if you compare the casual rates from Monday to Friday, particularly in the last two classifications for what is described as a bar attendant/waitress under the Broken Hill award or a level 1 food and beverage assistant, the hourly rate is in fact lower under the South Australian award from Monday to Friday. It is my submission that when the work patterns that are involved in this business are taken into account there is no detriment, in fact the employees will be substantially better off due to the operation of the higher rates available to them for working after 6 pm on Monday to Friday and Saturday, Sunday penalty rates. I have prepared another comparison sheet which may set that out more clearly, Deputy President, if I can hand that up as well.
PN234
PN235
MR KLEPAC: I must admit to one small one calculation error on the South Australian award with the level 2. I mistakenly calculated that as $15 1137 last night, but in fact it is $15 5537. In terms of the other aspects of the award I note that the South Australian award provides for a 38-hour ordinary working week, as does the Broken Hill award. The South Australian award provides for an ordinary working day of between 6 pm and 6 am and 10-hour working day, whereas the Broken Hill award does provide for hours to be averaged over a 12-week period.
PN236
In terms of overtime the South Australian award provides for time-and-a-half for the first 3 hours and double time thereafter, whereas the Broken Hill award provides for time-and-a-half for the first 2 hours and double time thereafter. We submit that given the higher penalty rates available to employees and the absence of overtime arising under the terms of either of the awards, again there isn't any detriment to the employees arising from that factor.
PN237
Under the South Australian award minimum engagement for a casual employee is 3 hours whereas under the Broken Hill award the minimum engagement is for a period of 2 hours. So in total it is my submission that whilst there are some elements that are superior in either of the awards, in total the fact that the employees who will be covered by this agreement will be receiving penalty rates and substantially higher penalty rates at that for post 6 pm work and for weekend work, that overall the no detriment test is satisfied by this agreement. Are there any particular questions on the matter, Deputy President?
PN238
PN239
THE DEPUTY PRESIDENT: I should note that the statutory declaration where it is asked to specify those clauses in the agreement any reduction, the terms and conditions of employment and then subsequently any terms and conditions which would result in there being on balance no reduction in the overall terms and conditions of employment, neither of those are filled out, I should say that is clearly a deficiency. Those questions are not asked in the sense of if - they are not contingent upon the answer to whether the certification would result on balance in the reduction, they are questions that are asked generally.
PN240
The factors you pointed out to me are entirely relevant, of course, they should have been in the statutory declaration. Whilst it is not uncommon for there to be some misunderstanding about that I do point that out for the record. Secondly, if I can ask you a question about the nature of the proposed agreement and in particular the indication in clause 7 that effectively the South Australian award conditions are going to be imported.
PN241
MR KLEPAC: Yes.
PN242
THE DEPUTY PRESIDENT: It says:
PN243
...as in force at the time of the making of this agreement shall apply.
PN244
Now, what does that mean about any subsequent variations to the South Australian award?
PN245
MR KLEPAC: If I can seek some instructions?
PN246
THE DEPUTY PRESIDENT: Yes.
PN247
MR KLEPAC: My instructions are, Deputy President, that variations to the South Australian award would be passed on to the employees.
PN248
THE DEPUTY PRESIDENT: So that is the award as varied from time to time, is it?
PN249
MR KLEPAC: Yes, yes, and we would be happy to make that in the form of an undertaking if there is any ambiguity as to the terms of clause 7.
PN250
THE DEPUTY PRESIDENT: Also in terms of the South Australian award you will appreciate, having read it, that there are general provisions which relate to employees falling under the scope of the award. There are specific provisions relating to catering employees. Now, I would invite your submissions on two aspects - that is clause 17, by the way.
PN251
MR KLEPAC: Yes.
PN252
THE DEPUTY PRESIDENT: I would invite your submissions or your comments on two aspects. One is the applicability or not of that provision to the work under the proposed agreement and secondly, what understanding employees might have had when they formed a view about the agreement.
PN253
MR KLEPAC: That is where the clause 17 applies to the employees.
PN254
THE DEPUTY PRESIDENT: Well, whether it is intended to apply as a result of the operation of the certified agreement and secondly, what understanding employees may have had about that at the time.
PN255
MR KLEPAC: Can I seek some instructions?
PN256
THE DEPUTY PRESIDENT: Certainly.
PN257
MR KLEPAC: Deputy President, it is my understanding from Mr Ellis that - can I clarify, is your question related particularly to 17G of the award as to those provisions not applying to - - -
PN258
THE DEPUTY PRESIDENT: Well, as I understand clause 17, particular employees called catering employees under the terms of that clause have particular provisions that apply to them including a higher casual loading but a substantially modified terms of engagement. In that context, yes, G indicates that certain penalty clauses don't apply but they don't apply in the context of a 25 per cent loading if a catering employee is engaged on a daily basis and if engaged for less than a daily basis two-thirds which I think is 66 per cent.
PN259
MR KLEPAC: Yes. My understanding of this clause is that it is designed for catering for special events and functions and the like. I think clause I indicates that:
PN260
...who is employed in connection with any special breakfast, special dinner, luncheon or similar social function...
PN261
Whereas the operation of formula 1 is more in the nature of a contract to provide food services on an ongoing basis. So it wouldn't be classified as catering for a special or one-off function.
PN262
THE DEPUTY PRESIDENT: My concern I think was principally (ii) there which appears to be an alternative, that is:
PN263
...or who is employed in or about any restaurant, dining room.
PN264
I think that was the - - -
PN265
MR KLEPAC: Thank you, I might check that.
PN266
THE DEPUTY PRESIDENT: Yes.
PN267
MR KLEPAC: Mr Ellis explains the clause to me. Clause 2 is interpreted to mean that any employee who is employed in any restaurant, tea room, dining room, food stall, cafe, any of those activities specifically at a race course, trotting ground, sports ground, show ground or at any picnic. Mr Ellis also instructs me that that is a very infrequent occasional event. In the context of where that situation might arise he would apply clause 17 in its entirety to the staff.
PN268
THE DEPUTY PRESIDENT: I raise that in the context of the schedules you have provided which, of course, relate to the award proper rather than the particular - - -
PN269
MR KLEPAC: Yes.
PN270
THE DEPUTY PRESIDENT: - - - arrangements that arise in the clause 17. Mr Klepac, you have made a number of assertions about the nature of the practical implementation of the enterprise. I accept that that is entirely relevant in terms of the assessment of the no disadvantage test. That is, in my view it is an assessment that is made in the practical circumstances in which the agreement is made and is to be applied, but there are two things that arise from that. Firstly, I would invite you to subsequently supply me with some evidence about that and in particular time books, wage summaries, something that actually confirms the pattern of ordinary hours and the payments made to date for an indicative period.
PN271
Secondly, the concern I have is that of course in the context of what might be the existing pattern of hours and the impact with the differential approach to wage rates and penalty rates, surely the Commission's job is to assess the not inferior test by way of the, you know, in a sense the precise wording of the Act and in particular that is an indication of whether or not the overall terms and conditions of employment are inferior.
PN272
MR KLEPAC: Yes.
PN273
THE DEPUTY PRESIDENT: Whilst I don't want to detract from what I said about the practical application of that, you appreciate there's no guarantee that circumstances might change, including the pattern of employment, contracts come or go and in that context I think it would be clear, and I take it you accept this from your submissions, that if the balance of hours were to be Monday to Friday then there may well be some significant difficulties in the application.
PN274
MR KLEPAC: Yes. I have another document which may address the Commission's concerns in that regard. What I have asked Mr Ellis to provide me with is an indicative roster from November of last year relating to employees over a 1-week period and what this document shows is the daily rates of pay compared under the Broken Hill and South Australian award as well as a total rate at the end of the weekly period. If I may hand those up, sir?
PN275
THE DEPUTY PRESIDENT: Yes, thank you. I understand this document, what is contained in respect of each award are actual hours worked by those employees?
PN276
MR KLEPAC: Yes, then the actual wages figures. Deputy President, you might notice that I think in respect of two of the employees on a weekly basis, there is a slightly lower total rate of pay under the South Australian award as compared to the Broken Hill award of about $14. My particular submission on that issue is that it is the - over a period of time employees do come out in front or better off under the South Australian award because of the penalty rate regime and it isn't possible in a 1-week period to show entirely the figure to show that the South Australian award is better, but I'm instructed by Mr Ellis that the particular undertaking that we would proffer to the Commission today is that on a 28-day period my clients would ensure that no employee would be worse off under the proposed enterprise agreement than they would be under the Broken Hill award and that is to take into account the situation you have raised where an employee might work solely Monday to Friday before 6 pm but in our submission, given the particular nature of my client's business, it is not a circumstance that arises but it will provide that additional safeguard to the employees that that undertaking is formally proffered to the Commission.
PN277
THE DEPUTY PRESIDENT: Do I take it that undertaking would extend to all monetary benefits rather than just wages? I say that in the context of the New South Wales award, as I understand it, providing annual leave benefits to casuals whereas that has been excluded, I think, from the comparative calculations.
PN278
MR KLEPAC: In the - yes, other than as is provided under the agreement it would be an overall no financial detriment position.
PN279
PN280
MR HOLLAND: Deputy President, if I can just interrupt at this point. Is it possible to be provided with these documents? I understand that we haven't been granted leave to intervene at this stage but that if we are ever to make submissions on this matter if we could refer to the documents that are being provided to the Court.
PN281
THE DEPUTY PRESIDENT: Mr Holland, whether Mr Klepac provides them to you at this stage I think is optional. I appreciate I have not granted you intervention. In the event that I did, you of course would have to have them supplied if he didn't offer to do that in any event so that you were given an opportunity to deal with them, so I will note your position.
PN282
MR HOLLAND: Thank you.
PN283
THE DEPUTY PRESIDENT: Anything further, Mr Klepac?
PN284
MR KLEPAC: No, Deputy President.
PN285
THE DEPUTY PRESIDENT: Without in any way wanting to detract form your position I think it would be appropriate that I give an opportunity for the employee representative if they wish to say anything in these proceedings to do so.
PN286
MR KLEPAC: Certainly. There is no obligation but it is an opportunity.
PN287
MS NELSON: Yes, I just want to sort of say - - -
PN288
THE DEPUTY PRESIDENT: Sorry, and you are?
PN289
MS NELSON: Sorry, Cheryl Nelson. I just want to say that I'm happy with the rate of pay and work conditions at Formula 1 Catering.
PN290
THE DEPUTY PRESIDENT: Are you in a position to appreciate the impact of the proposed award?
PN291
MS NELSON: Yes.
PN292
THE DEPUTY PRESIDENT: That is the impact of the Sate award through the agreement?
PN293
MS NELSON: Yes, I'm happy with the South Australian rate of pay.
PN294
THE DEPUTY PRESIDENT: Have you seen the comparative documents that have been passed up to me?
PN295
MS NELSON: Yes, well, I know - the difference between the Broken Hill and South Australian?
PN296
THE DEPUTY PRESIDENT: Yes.
PN297
MS NELSON: Yes, I have seen them.
PN298
THE DEPUTY PRESIDENT: Your first name was?
PN299
MS NELSON: Cheryl.
PN300
THE DEPUTY PRESIDENT: So have you found yourself on that - perhaps, Mr Klepac, you might help Cheryl locate herself on that. I just want to confirm whether you accept that they are indicative of the sort of hours that you work.
PN301
MS NELSON: Yes.
PN302
THE DEPUTY PRESIDENT: Is there anything further you wish to record?
PN303
MS NELSON: No, I just want to sort of let you know that I'm happy with my hours, my rate of pay and my work conditions and I've got no dispute at all.
PN304
THE DEPUTY PRESIDENT: Thank you. Anybody else?
PN305
MS BENNETT: I'm Kelly Bennett, I've worked for Jeff for 12 months now. I can't see any problem at all with the rate of pay that we are getting paid. Our penalty rates are absolutely brilliant, our hours are kept steady. I mean, during the quiet period, yes, we're not quite as busy but I mean all in all our rate of pay, our hours, our working conditions, even the environment Jeff provides for us is outstanding. I have worked several positions in Broken Hill and never worked for an employer like Jeff and I would never see myself working for anybody else.
PN306
THE DEPUTY PRESIDENT: All right. Again, perhaps you could have a look at the document Mr Klepac will show you. Have a look at the hours that have been nominated. I appreciate there's some fluctuation. It is a question of whether you accept that they are typical of the sort of hours and the times of the day that you work.
PN307
MS BENNETT: Yes.
PN308
THE DEPUTY PRESIDENT: All right. Thank you. Anything further, Mr Klepac?
PN309
MR KLEPAC: No, thank you.
PN310
THE DEPUTY PRESIDENT: Yes, then for reasons that will be obvious to the representatives of the parties I propose to reserve a decision on the application. I will, of course, then have to deal both with the intervention question and/or the substantive question and I will advise the parties of my deliberations in writing at the earliest opportunity. The Commission be adjourned.
ADJOURNED ACCORDINGLY [2.56pm]
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