AG2004/2579, Transcript of Proceedings [2004] AIRCTrans 1580 (26 April 2004)

AUSCRIPT PTY LTD
ABN 76 082 664 220

Level 10, 15 Adelaide St BRISBANE Qld 4000
(PO Box 13038 George Street Post Shop Brisbane Qld 4003)
Tel:[phone] Fax:[phone]

TRANSCRIPT OF PROCEEDINGS

O/N 2528

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER RICHARDS

AG2004/2579

APPLICATION FOR CERTIFICATION
OF AGREEMENT

Application under Section 170LK of the Act by
Benverreen Pty Ltd for certification of the
Home Fresh Produce Certified Agreement 2004

BRISBANE

2.06 PM, WEDNESDAY, 14 APRIL 2004

PN1

THE COMMISSIONER: Perhaps if I could just take some appearances. I will just take your names, who's appearing.

PN2

MR M. REYNOLDS: Michael Reynolds.

PN3

THE COMMISSIONER: And your position, Mr Reynolds?

PN4

MR REYNOLDS: General Manager of Home Fresh Produce.

PN5

THE COMMISSIONER: Good. Thanks, Mr Reynolds. And appearing with you?

PN6

MS S. McKINNON: Stacey McKinnon.

PN7

THE COMMISSIONER: Sorry, Stacey?

PN8

MS McKINNON: McKinnon.

PN9

THE COMMISSIONER: And your position, Ms McKinnon?

PN10

MS McKINNON: Production Manager.

PN11

MR J. SINCLAIR: Josh Sinclair, and I'm just a factory hand.

PN12

MS J. LANG: Janet Lang.

PN13

THE COMMISSIONER: So with an "e" on the end or not?

PN14

MS LANG: No, just L-a-n-g.

PN15

THE COMMISSIONER: No "e."

PN16

MS LANG: Just a factory hand.

PN17

THE COMMISSIONER: A factory hand.

PN18

MR REYNOLDS: And Mr Prescott.

PN19

MR T. PRESCOTT: Factory hand.

PN20

THE COMMISSIONER: Good. Thanks, everyone, for that. Perhaps, Mr Reynolds, do you intend to address me on whether or not the Act has been complied with in respect to the agreement or - - -

PN21

MR REYNOLDS: Certainly.

PN22

THE COMMISSIONER: - - - would you like me to ask you some questions?

PN23

MR REYNOLDS: Yes.

PN24

THE COMMISSIONER: Okay. Go ahead.

PN25

MR REYNOLDS: Yes, we've made application for our second workplace agreement. We currently have a workplace agreement in place which took us through till September this year. However, we saw the need to change the way the facility operated, hence to go to a seven day a week operation. We went to the staff with a proposal and put forward the motion of a seven day a week operation, working a 28 day cycle, which is the basis of this agreement.

PN26

THE COMMISSIONER: Okay. I'll ask you some specific questions, if you like, Mr Reynolds. Just in your statutory declaration concerning the agreement, you were asked a question as to - to identify any specific clauses in the agreement - well, first of all, there are a series of questions in the statutory declaration around - or about paragraph 6 thereof regarding reductions against the award.

PN27

MR REYNOLDS: Yes.

PN28

THE COMMISSIONER: Now, I've had a look at the award, and that being the State award, the General Stores, Warehousing, Distribution Award 2002, and I notice there are a number of allowances specified in the award that don't appear to be replicated in the agreement. Some of the ones I've found, just in relation to work in cold-rooms, employees engaged in handling or carrying mechanical contrivances, etcetera, and there are a various number of them, and so on to do with carrying. There are first aid allowances, carrying particular weights of bags, and forth. Now, where have they gone in the agreement?

PN29

MR REYNOLDS: Well, when we did the first agreement, I did it with a consultant, and my understanding was that whatever was not stated in the agreement that we put forward, which was the 2002 agreement, it would refer back to the actual award that you're now talking of.

PN30

THE COMMISSIONER: Okay. So you're still picking up these allowances - - -

PN31

MR REYNOLDS: Absolutely.

PN32

THE COMMISSIONER: - - - through the award then. They haven't been cashed out in your rates or anything.

PN33

MR REYNOLDS: No.

PN34

THE COMMISSIONER: Okay. No, that's all right. They're still applicable and that explains their absence in the statutory declaration as well.

PN35

MR REYNOLDS: Thank you.

PN36

THE COMMISSIONER: I might just ask particularly the three factory hands who are here today. Now, it's your knowledge that you're still paid these particular allowances?

PN37

MS LANG: As far as we are aware, yes.

PN38

THE COMMISSIONER: Yes. So you're - yes, okay. Good. Thank you. If we can just have a look at the rates of pay themselves in the agreement against the award, we're looking at clause 3.3 of the agreement against clause 5.2 of the award. Now, you're only using two of the store-worker classifications - - -

PN39

MR REYNOLDS: That's correct, yes.

PN40

THE COMMISSIONER: - - - and that's all. There's no one to be employed in store-worker 3 or 4 under the award?

PN41

MR REYNOLDS: No, what we found was that with the original agreement was that there was five levels of which Home Fresh Produce only referred to two. We've got our general hands at level 1, and at level 2, we then grouped all our machine operators and forklift operators. Now, we simplified what we were doing there, as we didn't see the need to have five different levels.

PN42

THE COMMISSIONER: You haven't compacted any of the classifications, have you?

PN43

MR REYNOLDS: No, we've actually picked up from level 2 and level 3 of the award and renamed them level 1, level 2. So we've actually stepped them up.

PN44

THE COMMISSIONER: So you've taken 2 and 3; okay.

PN45

MR REYNOLDS: Yes.

PN46

THE COMMISSIONER: Now this explains - because I've just - okay, no, that's all right, because this starts to explain the rates.

PN47

MR REYNOLDS: Yes.

PN48

THE COMMISSIONER: That's all right.

PN49

MR REYNOLDS: I understand.

PN50

THE COMMISSIONER: Now - okay, then. So - yes, sorry. So levels 1 and 2 in the agreement align with 2 and 3 in the award?

PN51

MR REYNOLDS: Correct.

PN52

THE COMMISSIONER: And hence the award rate for level 2, which is level 1 in the agreement, the award rate is 523.50.

PN53

MR REYNOLDS: The rate - which one did you just state then, Commissioner?

PN54

THE COMMISSIONER: Sorry. The level 2 is 508.50.

PN55

MR REYNOLDS: Yes.

PN56

THE COMMISSIONER: So your level 1 is 518, so you're some $16 per week above the award rate.

PN57

MR REYNOLDS: Yes, we've calculated it as approximately 6.22 per cent above the award.

PN58

THE COMMISSIONER: Okay. Is that the same case for store-worker - your store-worker 2 which - the agreement store-worker 2 which is the award store-worker 3?

PN59

MR REYNOLDS: Correct. We've got - - -

PN60

THE COMMISSIONER: So you're about $17, I think.

PN61

MR REYNOLDS: Correct, 6.22 per cent.

PN62

THE COMMISSIONER: Yes, okay. That's with the first - - -

PN63

MR REYNOLDS: Instalment of 4 per cent.

PN64

THE COMMISSIONER: - - - instalment, isn't it? You've got one more to go, if I recall; is that right?

PN65

MR REYNOLDS: That's correct, in April next year.

PN66

THE COMMISSIONER: In April next year; that's right.

PN67

MR REYNOLDS: And another 3 per cent.

PN68

THE COMMISSIONER: Okay. So you're in excess of 6 per cent above the award. You've retained your allowances as per the award. Have you got any additional flexibilities on shifts compared with the award?

PN69

MR REYNOLDS: In regards to the award, the hours were for 4 am to 4 pm on a Monday, and 5 am to 5 pm Tuesday to Friday. The basis of our agreement is that we've made our ordinary working hours from 4 am to 12 pm Monday to Sunday working a 28 day cycle. What we're doing, currently, is we've taken it to a single shift operation operating from 5 am till 3.38, working a 28 day cycle, which the staff will work five 10 hour and 8 minute days, and then have four days off. Consequently, still working 152 hours, the equivalent of four 38 hours in a four week cycle.

PN70

We've left it open to work until midnight; however, at this point in time, we don't see it being necessary. It's purely just the growth stage that the company is going in. The last time we put the agreement through, we had six full-time employees; we've now got 18 in the factory, and the business has grown quite rapidly.

PN71

THE COMMISSIONER: Okay. Can I ask any of the factory hands, the spread of hours and shift requirements were negotiated to your satisfaction, and you understood what was required - - -

PN72

MS LANG: Yes.

PN73

MR PRESCOTT: Yes.

PN74

MR SINCLAIR: Yes, that's correct.

PN75

THE COMMISSIONER: Okay. So for the record, all four - all three, rather, have indicated their acceptance of those arrangements. Mr Reynolds, do you have your notice there that was issued for the purposes of - it might be in my paper here, but I haven't quite spotted it, the notice that was issued pursuant to the Act, for the purposes of indicating that your intention to make an agreement?

PN76

MR REYNOLDS: Yes, is that - form R29?

PN77

THE COMMISSIONER: It could be, but I can't remember myself. I don't think so. It's the actual notice - I do have my Act hiding under paper.

PN78

MR REYNOLDS: Sorry, is that the notice of intention?

PN79

THE COMMISSIONER: Yes, that's right. It will be hopefully dated some two weeks before the agreement was voted on. It's the notice you issue pursuant to 170LK(2), or I think LK(3). LK(2).

PN80

MR REYNOLDS: I am not sure if I've got the right one. I've got from the last agreement - if I can just see if that is what you require, but I haven't got the current one, I apologise. Is that the form that we are talking about? Is it a notice to the staff with the intentions - - -

PN81

THE COMMISSIONER: Yes, that's right, yes.

PN82

MR REYNOLDS: No, I am sorry, I didn't bring the - - -

PN83

THE COMMISSIONER: That's right. It is not required of you, but it is just something I like to check. Okay. The clause under the heading Representation in this draft of the notice, was this - is that the same clause that was used in relation to this one as well?

PN84

MR REYNOLDS: Yes, it was, yes.

PN85

THE COMMISSIONER: Good. I was just ensuring you had compliance with Section 170LK(4) of the Act and you do.

PN86

MR REYNOLDS: Are you making reference to the representation the employees have of nominating a third party should they desire - - -

PN87

THE COMMISSIONER: No, this is the representation by - well, it is related to that but this is the express right for an employee to be represented by a relevant union and this clause provides that - it expressly states that they did have that right.

PN88

MR REYNOLDS: If I can add, at our first meeting, I made that perfectly clear to the group, that should they wish to have anyone that they liked present, they could do so.

PN89

THE COMMISSIONER: That's all right. I am satisfied on the basis of that documentation. There is only one other matter and that is, at clause 1.5 of your agreement on the period of operation, though your last wage increase came into effect on 1 April 2004 and I can see from reading that document very quickly how the two agreements have overlapped. The Commission can only certify from the date on which it certifies which is today's date.

PN90

MR REYNOLDS: Sure.

PN91

THE COMMISSIONER: Therefore, you are seeking for the agreement to remain in force to 31 March 2006, effectively, for slightly under a two-year period in practice, but you also have this other clause sitting at the end of that clause and it says:

PN92

...or until such other date as the parties may otherwise agree.

PN93

MR REYNOLDS: Yes.

PN94

THE COMMISSIONER: Now, the issue I just have there is it doesn't arise necessarily for the purpose of certification but the issue of certification is effectively an exercise of power by the Commission. Certification is for the period for which the Commission certifies it for. You can alter your nominal expiry date but you can only alter a nominal expiry date up until the maximum period of time you could originally have made an agreement for which is three years. You can't make an agreement for two years and then go away and amend it and make it for another two. So you have to watch that.

PN95

Secondly, this agreement that you refer to can only be an agreement reached pursuant to a variation to the agreement under the Act - under Section 170MD of the Act. So it is not something that the employers and employees can just informally agree to. There is a proper procedure you have to go through - not an elaborate one, but certainly one that requires the consent of all the employees, and demonstrably so, and it has to be done through a proceeding in the Commission under the Act. What I am trying to ensure is that there is clarity of understanding that this nominal expiry date can only be amended pursuant to the Act. It can't be amended by a local agreement.

PN96

MR REYNOLDS: Sure.

PN97

THE COMMISSIONER: And when it is amended, it can only be amended to the maximum of the duration of any agreement. You can't make it for four years; you've got to count from when it was first made up to the maximum of three years. So if you had an agreement that ran for two years, you could only amend it by way of Section 170MD for a further 12 months. You couldn't pursue it for another three years.

PN98

MR REYNOLDS: Yes, I understand.

PN99

THE COMMISSIONER: That said, on the basis of our examination of the various rates and comparison with the award, I am satisfied that the agreement meets the requirements of the Act and I certify the agreement to operate on the same terms from today's date until 31 March 2006. There are no other matters, Mr Reynolds?

PN100

MR REYNOLDS: Thank you very much.

PN101

THE COMMISSIONER: Thanks very much, everyone, for coming along.

ADJOURNED INDEFINITELY [2.22pm]