AG2004/2115, Transcript of Proceedings [2004] AIRCTrans 1944 (27 May 2004)

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TRANSCRIPT OF PROCEEDINGS


O/N 11238
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT DUNCAN

AG2004/2115

APPLICATION FOR CERTIFICATION OF AGREEMENT

Application under Section 170LK of the Act
by Voyages Hotels and Resorts Pty Limited
and Another FOR certification of the Voyages
Hotels and Resorts (Northern Territory)
Workplace Agreement 2004

SYDNEY

10.49 AM, FRIDAY, 14 MAY 2004

THIS HEARING WAS CONDUCTED BY WAY OF TELEPHONE CONFERENCE

PN1

THE SENIOR DEPUTY PRESIDENT: Could I have appearances please.

PN2

MR SANT: If it pleases the Commission my name is M. Sant, solicitor. I seek leave to appear on behalf of the applicant employers in this case, Voyages Hotels and Resorts Pty Limited and Kings Canyon Nominees Pty Limited.

PN3

THE SENIOR DEPUTY PRESIDENT: Leave is granted, Mr Sant. Are there any other appearances? Are there any other appearances to be made in this matter?

PN4

MR NICHOLSON: Your Honour, Mr Nicholson.

PN5

THE SENIOR DEPUTY PRESIDENT: Mr Nicholson, you're an employee, is that correct?

PN6

MR NICHOLSON: That is correct.

PN7

THE SENIOR DEPUTY PRESIDENT: Thank you. Mr Sant?

PN8

MR SANT: Thank you. Your Honour, this is an application to certify an agreement which is a section 170Lk agreement and replaces earlier agreements made by our clients which have now passed their nominal expiry dates. Those agreements are referred to in the proposed agreement itself at clause 4 where it provides:

PN9

This agreement also replaces the Ayers Rock Resort Workplace Agreement ...(reads)... Kings Canyon Resort Workplace Agreement 2000 in their entirety.

PN10

In support of the application our clients rely on the statutory declaration of Ms Burrell made on 25 February 2004 and I believe that statutory declaration should be before your Honour.

PN11

THE SENIOR DEPUTY PRESIDENT: I'll just make sure that it is. Yes, it is.

PN12

MR SANT: Thank you, your Honour. Our clients also rely on a supplementary statutory declaration which is a declaration of Mr Sheehan made on 13 May 2004 which I propose to tender.

PN13

THE SENIOR DEPUTY PRESIDENT: I'll mark the supplementary statutory declaration of Mr Pat Sheehan made on 13 May 2004 exhibit Voyages 1. It's a separate matter.

EXHIBIT #VOYAGES 1 STATUTORY DECLARATION OF P. SHEEHAN DATED 13/05/2004

PN14

MR SANT: Thank you. Your Honour, the employer applicants also rely on a range of other statutory declarations which have been provided to your Honour to demonstrate compliance with your Honour's directions made on 4 May in relation to the display of the notice of listing at various locations and they are the statutory declaration of Megan Scott, the statutory declaration of Tiffany Williams, the statutory declaration of Lisa Burrell, the statutory declaration of Cindy Pay and the statutory declaration of Ms Wandalowski.

PN15

THE SENIOR DEPUTY PRESIDENT: I note that all those have been filed. I will make no formal exhibit made of them.

PN16

MR SANT: Thank you, your Honour. In relation to the requirements of the Act, as far as section 170LI is concerned, the agreement is between an employer as a constitutional corporation and all persons who are employed in part of a single business of the employer. The employer in this case is both Voyages Hotels and Resorts Pty Limited and Kings Canyon Nominees Pty Limited. It's our submission that those employers may be treated as one employer for the purposes of the Act pursuant to section 170LB(2)(a) as they are carrying on a business, project or undertaking as to a common enterprise.

PN17

Your Honour, as I foreshadowed, unfortunately we are not in a position to put on evidence as to that common enterprise being conducted by the relevant employer applicants but would be in a position to do so within seven days. Might I just proceed with our other submissions and we could come back to that issue at the conclusion?

PN18

THE SENIOR DEPUTY PRESIDENT: Yes, you may, Mr Sant.

PN19

MR SANT: Thank you, your Honour. As far as section 170LK(1) of the Act is concerned, a valid majority of employees have made the agreement. A ballot was conducted on 6 February and again it overwhelmingly supported the agreement. Based on the returning officer's reports in relation to the ballots, 179 employees voted yes and 57 employees voted no and that is out of the total number of approximately 538 employees. The same process was adopted as in respect of the Queensland agreement your Honour in that a list eligible voters was prepared, a notice was issued to each of these eligible voters, a returning officer and scrutineers were appointed for each of the various sites, Kings Canyon Resort, the Ayers Rock Resort Complex and Alice Springs Resorts. Peoples names were checked off against this list when they presented to vote and the votes were counted and tallied by the relevant returning officer in the presence of the scrutineers.

PN20

As far as section 170LK(2) is concerned, it is our submission that our clients took reasonable steps to ensure that every person who would be subject to the agreement was given 14 days written notice of the intention to make the agreement and the agreement was not made until that time had expired. A copy of the notice issued to employees is attached to the statutory declaration of Lisa Burrell as attachment A.

PN21

THE SENIOR DEPUTY PRESIDENT: Yes, it is.

PN22

MR SANT: Your Honour, you will see again in that second last paragraph, the requirements of section 170LK(4) have been complied with in that the notice made reference to the rights of employees who were members of a relevant union to request that the union meet and confer with the employers in relation to the proposed agreement.

PN23

Your Honour, in respect of section 170LK(3), our clients did take reasonable steps to ensure that every person had ready access to the agreement. The statutory declaration of Mr Sheehan, Voyages 1, outlines these steps, particularly your Honour, at paragraph 5 of that statutory declaration. Mr Sheehan deposes to:

PN24

Employees having ready access to a copy of the proposed agreement at or before the time the notices about the intention to make the proposed agreement were issued. The notices were personally hand delivered to each employee who was physically at work at the time. The notices were issued by a human resources officer and an employee representative from the committee. The notices themselves state that copies of the proposed agreement had been placed in each department and were also available from human resources personnel.

PN25

In addition, employees were informed by those relevant human resources officers and the employees representatives handing out the notices that copies of the proposed agreement were available from their department, human resources personnel and committee members. Employees were also informed at the meetings road showed, referred to earlier in this statutory declaration, that copies of the proposed agreement were available from these persons.

PN26

Your Honour, in respect to section 170LK(5) and (6), no request was made by the union, or any relevant union, to meet and confer with the employers as to the content of the agreement so they have no application in respect of this matter. As far as section 170LK(7) is concerned, the explanation obligations imposed upon our clients, in our submission our clients took reasonable steps to ensure that the terms of the agreement were explained to every person. As set out in the statutory declarations of Ms Burrell and Mr Sheehan, various steps were taken. Presentations and road shows were held at each location, detailed comparative tables were prepared and available to persons to review.

PN27

Those tables are attached to the statutory declaration of Ms Burrell. Members of the EPA committee, which was established for the purposes of the agreement, and human resources personnel were available to answer questions persons had. In particular, the statutory declaration of Mr Sheehan, Voyages 1, provides at paragraph 3 that:

PN28

Employees had access to the comparative table comparing the terms of the proposed agreement to the relevant awards before the ballot to approve the proposed agreement was held. Employees were informed by human resources personnel and committee members that copies of the comparative tables were available from human resources personnel, committee members and department heads. They were also informed of meetings, road shows referred to in this statutory declaration, that copies of the comparative tables were available from these persons. Comparative tables were also displayed on notice boards and staff canteens.

PN29

You will see in paragraph that Mr Sheehan deposes to the fact that there were information meetings, road shows, conducted at three different times on 21 January 2004 and again on 28 January 2004 in a truncated form at the Ayers Rock Resort complex. On 22 January 2004, at the Kings Canyon Resort and again on 18 January 2004 at the Alice Springs Resort.

PN30

Your Honour, I am instructed that there had been no variations to the agreement after the time that the notice of intention to make the agreement was issued so, in those circumstances, section 170LK(8) has no application. As far as section 170LT is concerned, and in particular the no disadvantage test, our client submits that the agreement passes the no disadvantage test. The relevant awards in this case, your Honour, are Federal awards, the first one being the Hotel, Motel, Wine, Saloon, Catering, Accommodation, Club and Casino Employees (Northern Territory) Consolidated Award 2002 and the Retail, Wholesale and Distributive Employees Northern Territory Award 2000. Those awards operate by way of common rule in the Northern Territory.

PN31

Your Honour, the agreement is in similar terms to the agreements previously certified by this Commission. This is the third generation of this agreement and what it is seeking to do mainly is to consolidate the various agreements at different locations within the Northern Territory into one document. The statutory declaration of Pat Sheehan, which is Voyager 1, attaches your Honour, for the purposes of satisfying this Commissioner that the agreement meets the no disadvantage test, calculations that have been prepared by the employers of typical rosters that operate at the resort and they demonstrate, on your perusal your Honour, that the agreement, on the whole, does not disadvantage employees.

PN32

Those tables have no regard to the many benefits available to employees under the agreement including, under clause 9 of the agreement, a performance bonus payment of up to $500 per annum. Under clause 19 of the agreement, an attendance bonus of up to 20 hours per annum, the multi hiring arrangement under clause 23 of the agreement, which allows employees to access additional hours as casual employees. The accommodation rental subsidy and salary sacrifice arrangements under clause 27, which provide significant benefits to employees, a relocation costs reimbursement under clause 28 of the agreement of up to $600 and that is an after tax figure. A vacation cost reimbursement under clause 29 of the agreement of up to $600 after tax per annum.

PN33

In addition, your Honour, as is the case in respect of the Queensland agreement, you will find on the last page of the statutory declaration of Ms Burrell an undertaking the employers have provided in relation to this agreement. The effect of that undertaking is that employees are able to request, after certain intervals, for a reconciliation to be conducted comparing their earnings under the agreement to that under the relevant awards and if there is a shortfall, that shortfall will be made up by the employer.

PN34

Your Honour, it is our submission that the agreement meets the requirements of the Act. I have further submissions that I am in a position that I may not put at this point until we hear from other persons participating in these proceedings.

PN35

THE SENIOR DEPUTY PRESIDENT: Very well, Mr Sant. Mr Nicholson, some little time ago you wrote a letter to - - -

PN36

MR NICHOLSON: There are four points that I wish to make representations on. The first is the provision under section 11(1)(A) of moving to a 12 week pay period. Yesterday, I was informed that I am not going to be included in this 12 week pay period, I am going to be remaining on a four week pay cycle. It is my contention that people should be paid for the work they have done at the time they have done it, not 12 weeks later. This is contrary to the relevant award, which has just been pointed out, that it disadvantages from the award. That is probably all I wanted to say on that one, except that it seems when you do some overtime you have to wait 12 weeks to be paid for it, is not a very good situation.

PN37

The second clause contains split shifts, it does not affect me but it affects other workers. The previous award, by agreement, section 13(2) of the new award states that there is now no limit on the number of split shifts a worker can work, where the previous one you could only work six split shifts within a 14 day period. A lot of people were not aware that this was in the new award, and for those restaurant workers particularly that are involved means they would permanently be on split shifts.

PN38

The third clause, which has just been referred to by the previous speaker, section AE of the appendix at the end, which is the rent subsidy and the salary sacrifice. In the previous agreement we could receive both rent subsidy and the salary sacrifice and the new appendix right at the end, it is now either/or, so that has been taken away from us.

PN39

The last one I wish to make note of is the classification of workers, schedule 1, introductory workers, all cleaners and labourers are classified as introductory workers and there is no way you can get above that level. We feel that is discriminatory against cleaners, it does not matter how much experience you have or how long you have been in the job, you cannot be classified above that level. Those are the submissions I wish to make, thank you.

PN40

THE SENIOR DEPUTY PRESIDENT: Thank you. Mr Sant, what do you have to say?

PN41

MR SANT: Your Honour, in respect of Mr Nicholson's concern about the 12 week cycle that the agreement introduces, I confirm, as set out in the statutory declaration of Pat Sheehan, which is Voyages 1, that the applicant employers are prepared to give an undertaking in respect of Mr Sheehan's hours - - -

PN42

THE SENIOR DEPUTY PRESIDENT: Mr Nicholson's hours.

PN43

MR SANT: Sorry, Mr Nicholson's hours, such that he will not receive a reduction in his fortnightly pay as a consequence of the introduction of the 12 week cycle. It is the employers position that the hours of work of Mr Nicholson are an anomaly arising as a consequence of an arrangement entered into between Mr Nicholson and the applicant employers at the time that his employment with Tempo Services was terminated and he was hired by Voyages Hotels and Resorts Pty Limited and the hours he works are unusual. In terms of the 12 week cycle in general application, we would say that it does not give rise to a significant disadvantage to employees in the sense that their ordinary hours remain unaffected, their rate of pay remains unaffected, it is just a matter that their hours are being averaged over a longer cycle to provide the employer the necessary flexibility required for the purposes of dealing with the remote and seasonal nature of its business.

PN44

In relation to Mr Nicholson's concerns about the split shifts, Mr Nicholson is rightly comparing one of the former certified agreements to the current agreement but, your Honour, that is not the appropriate test for the purposes of the application of the no disadvantage test. That test requires a comparison of the proposed agreement to the relevant award and my understanding of the relevant awards is that they do not prescribe or limit the number of broken shifts that can be worked in a cycle. So there is, in fact, no disadvantage caused as a consequence of the application of the clause that Mr Nicholson has taken us to.

PN45

In respect of Mr Nicholson's concerns about the issue of the rental subsidy and the salary sacrifice arrangements, again the same point is pertinent in that Mr Nicholson is seeking to compare one of the current agreements to the proposed agreement. That is not the test for the purposes of the application of the no disadvantage test. The test is simply one of comparing the proposed agreement to the relevant award and the awards make no provision for such rental subsidy or salary sacrifice arrangements. In addition, I would point out that the former agreement did not, contrary to Mr Nicholson's assertion, permit employees to have access to both the rental subsidy and the salary sacrifice arrangements. They obtained one or the other, that has always been the position.

PN46

In respect of the classification structure issue that Mr Nicholson has raised, in the relevant award, that being for Mr Nicholson the Hotels, Motels, Wines, Saloons, Catering, Accommodation, Clubs and Casino Employees Northern Territory Award, the classifications set out in that award, in particular at clause 16, provides that:

PN47

An employee undertaking labouring and cleaning duties in the administrative and ancillary service division is a hospitality worker level 1.

PN48

There is no scope for progression within the relevant award for an employee within that stream of the business, undertaking cleaning duties, to progress beyond hospitality worker, level 1. The proposed agreement, the relevant classification that would apply to Mr Nicholson is, in fact, as Mr Nicholson has said himself, resort operations introductory. If one was to do a comparison of the description of the classification that applies for resort operations introductory one would find, as set out in our comparative tables that, that is equivalent to the classification of hotel worker 1. So there is no disadvantage caused at all to Mr Nicholson as a consequence of the application of the classification structure in the proposed agreement. It is the same classification structure that has been in place at the resort now for some six years, under the previous two years, and it mirrors the classification structure under the relevant award. I do not think I have anything to put further, your Honour.

PN49

THE SENIOR DEPUTY PRESIDENT: Well just one question, the rental subsidy salary sacrifice issue, what relevance has the award got to that aspect? I note that you say that the split shifts issue is simply not provided for in the award and consequently that being so, this agreement does not disadvantage employees and similarly with the classification structure. Is there any award connections, is perhaps a better way of putting the question, in relation to the rental subsidy salary sacrifice issue?

PN50

MR SANT: In our submission no, your Honour.

PN51

THE SENIOR DEPUTY PRESIDENT: There is not, there is no award provision?

PN52

MR SANT: There is an award provision that provides for, and I think you will not find it in the retail award, but accommodation charges or a deduction for board and lodging.

PN53

THE SENIOR DEPUTY PRESIDENT: Yes, there would be, most awards to.

PN54

MR SANT: There would be, in respect of the hospitality award. It doesn't make any reference to some form of subsidy or salary sacrifice. Obviously, you've probably seen this before your Honour, that many agreements now introduce the salary sacrifice arrangement to confer a benefit upon employees which doesn't cost the employer a significant amount of money.

PN55

THE SENIOR DEPUTY PRESIDENT: Yes and which are over and above the award in any event.

PN56

MR SANT: Yes.

PN57

THE SENIOR DEPUTY PRESIDENT: All right. Well Mr Nicholson you've heard all of that, do you have any further comment?

PN58

MR NICHOLSON: No, thank you very much.

PN59

THE SENIOR DEPUTY PRESIDENT: All right, just so you know where you stand it seems to me that in at least three of the four issues that you've raised the position is that the agreement is at least comparable to if not better than the award provision. That being so there is no further debate about those issues for the purposes of certification of the agreement.

PN60

As far as that twelve week pay period is concerned it may be that Mr Sant has to respond to this but I read the agreement as saying that if you are a full time employee you will be paid fortnightly. I don't quite understand how there could be a delay in payment such as you referred to Mr Nicholson in your statement.

PN61

MR NICHOLSON: The twelve week cycle refers to overtime and that is at the end of every twelve weeks there's reconciliation as to the amount of overtime you worked and it is paid at that stage.

PN62

THE SENIOR DEPUTY PRESIDENT: It's clause 12 I think you must be referring to.

PN63

MR SANT: Your Honour, he's right, if you read on clause 11, if I might assist the Commission your Honour. Clause 11.1 says:

PN64

If you are a full time employee you would be paid fortnightly, however the arrangements for payment of your wages ...(reads)... or retail employee -

PN65

Which would be the case in Mr Nicholson's case:

PN66

You will see two times the applicable loaded weekly wage each fortnight ...(reads)... for the last fortnight of the applicable twelve week cycle.

PN67

So the point there your Honour was that the intention is if overtime were to arise at a particular time, for example the employee had worked more than their rostered shift or for more than twelve hours that overtime would be paid in that relevant two week period but if we're talking about simply hours that are permissible under the hours of work arrangements for which overtime is not paid unless you get to the accumulated total well that overtime would be adjusted for in the concluding twelve week cycle, sorry twelve weeks of the cycle.

PN68

THE SENIOR DEPUTY PRESIDENT: Yes, it's complex but I understand. All right then, that is what we've reached on those matters raised by Mr Nicholson. What we now have to do is turn our attention to that problem Mr Sant of the 170LB(2) matter.

PN69

MR SANT: Yes your Honour. My suggestion if the Commission were minded would be for the applicant employers to call evidence from a relevant person from the management of the Voyages Hotels and Resorts Group for the purposes of satisfying you that Kings Canyon Nominees Pty Limited and Voyages Hotels and Resorts Pty Limited are undertaking a common enterprise for the purposes of this agreement.

PN70

THE SENIOR DEPUTY PRESIDENT: Yes. I think what I will do is adjourn these proceedings in this matter for a short number of days to permit that evidence to be put on. Any formal decision will await the outcome of that. That is in fact a jurisdictional point and it's pointless us doing anything about the merits of the agreement until that has been cleared up, so we will go off record to arrange a suitable time for that matter to be addressed.

OFF THE RECORD [11.24am]

RESUMED [11.25am]

PN71

THE SENIOR DEPUTY PRESIDENT: Further proceedings in this matter will take place on Friday, 21 May at 2.00pm. For the benefit of those people who have attended today in places far away the only issue that will be being dealt with then is the question of the combination of the Kings Canyon Company with the Voyages Company as employers. There will be no further debate about the merits, enough has been put forward this morning to make me believe that all other requirements of the statute have been met and subject to the jurisdictional point being cleared up certification will issue. I adjourn this matter in accordance with the arrangements already made, I adjourn the Commission until 2.00pm.

ADJOURNED UNTIL FRIDAY, 21 MAY 2004 [11.26am]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #VOYAGES 1 STATUTORY DECLARATION OF P. SHEEHAN DATED 13/05/2004 PN14