AG2003/10099, Transcript of Proceedings [2004] AIRCTrans 208 (8 January 2004)

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TRANSCRIPT OF PROCEEDINGS


O/N 5756

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER SIMMONDS

AG2003/10099

APPLICATION FOR CERTIFICATION
OF AGREEMENT

Application under section 170LJ of the Act
by Ritchies Stores Pty Limited and Another
for certification of the Ritchie's Stores
Pty Limited and Master Grocers' Association
of Victoria Limited and Australasian Meat
Industry Employees' Union Certified
Agreement 2003

MELBOURNE

10.03 AM, WEDNESDAY, 17 DECEMBER 2003

PN1

MR P. DAVEY: I appear on behalf of the Australasian Meat Industry Employees' Union, along with MR L. BURLEY.

PN2

MR L. BLIGNAUT: I represent the Master Grocers' Association who are appearing on behalf of their member, Ritchies Stores.

PN3

THE COMMISSIONER: Ritchies Stores Pty Limited, is it?

PN4

MR BLIGNAUT: Yes.

PN5

THE COMMISSIONER: Yes, thank you, Mr Blignaut. Now, the matter that was originally lodged or the application that was originally lodged in this matter was deficient in some respects and my Associate contacted a representative of the Master Grocers' Association, I think, and some amended pages to the agreement have been provided. I just wanted to get some advice on that, that in fact what went to the employees was what is now before the Commission, rather than what was originally lodged with the Commission. Is someone in a position to clarify the situation for me?

PN6

MR BLIGNAUT: Commissioner, yes, the agreement that is before the Commission is the same as the agreement that was voted on or approved by the employees.

PN7

THE COMMISSIONER: That is the agreement that is now before the Commission, not the agreement that was originally lodged?

PN8

MR BLIGNAUT: It is basically the same agreement.

PN9

THE COMMISSIONER: No, it is not. There are quite some substantial differences between what was lodged in the Commission and what was subsequently amended. The agreement that was lodged in the Commission, for example, had a title of:

PN10

This agreement will be known as the Master Grocers' Association of Victoria Limited and Australasian Meat Industry Employees' Union Certified Agreement 2003.

PN11

Whereas the agreement that is now before me is known as the Ritchies Stores Pty Limited and Master Grocers' Association of Victoria and Australasian Meat Industry Employees' Union Certified Agreement. Another change was that there was a schedule F in the matter that was lodged and I think the reference to that was:

PN12

This agreement will bind the union, all employers listed in schedule F -

PN13

and schedule F was a blank document, there were no employers listed and the schedule E was headed Master Grocers' Association and Australasian Meat Industry Employees' Union Certified Agreement pro forma agreement variation form and schedule D was headed the same sort of thing. It related to a pro forma for a full-time employee and the matter that is now before me is described as the Ritchies Stores Pty Limited and Master Grocers' Association of Victoria Limited and Australasian Meat Industry Employees' Union Certified Agreement, so it was in a totally different form. There was no reference, in other words, to Ritchies Stores in the agreement that was lodged before me initially. Now, what was it that the employees voted on?

PN14

MR BLIGNAUT: The employees voted on the agreement from clause 1 to the end of the agreement. If I can just - - -

PN15

THE COMMISSIONER: But which clause 1? The one that was originally lodged or the one that is now before the Commission, because the clause 1 that was originally before - which was lodged in the Commission had no reference to Ritchies Stores in it and the one that is now here does have a reference to Ritchies Stores. Am I making myself clear?

PN16

MR BLIGNAUT: Yes, but that is the title of the agreement, Commissioner.

PN17

THE COMMISSIONER: And it is clause 1.

PN18

MR BLIGNAUT: If I can just take the Commission through the process that was followed.

PN19

THE COMMISSIONER: No, I just want to know whether the agreement that is now before me is identical to the one that was before the employees.

PN20

MR BLIGNAUT: Inasfar as that title is concerned, it is not identical.

PN21

THE COMMISSIONER: And what about the schedule F and schedule D? Well, schedule D and E are clearly references to the title. Schedule F has got the store names. Now, did people at each of those stores vote in respect to the agreement?

PN22

MR BLIGNAUT: Can I just take instructions on that?

PN23

THE COMMISSIONER: Yes, certainly.

PN24

MR BLIGNAUT: As I understand, Commissioner, that blank schedule F is the same as the agreement that was put to the employees. The reason why it is blank is because the union conducts the vote amongst various stores, amongst the employees, so we do not know at that stage which stores are going to vote and which stores are not going to vote and it was kept blank from the beginning and as it is now.

PN25

THE COMMISSIONER: Do each of those stores have a butcher's department?

PN26

MR BLIGNAUT: Yes. If I can just take the Commissioner through this agreement. Originally, this was part of a multi-employer agreement. Some months ago, the Commission had certain reservations about Ritchies being party to a multi-employer agreement and so an agreement was furnished for all the butchery workers, the butchery department of Ritchies to be a stand-alone agreement, rather than to be part of a multi-employer agreement and that is where the problems come in with the title. The title has been changed to reflect Ritchies, but in all other respects, the agreement is the same as the agreement the employees voted on.

PN27

THE COMMISSIONER: And they voted on 18 November?

PN28

MR BLIGNAUT: The employees voted over a period I think from 18 November to 27 November and in that respect, we seek ..... for the stores that fall outside the 21-day period because there are a number of stores involved, but they are all part of the same butchery department.

PN29

THE COMMISSIONER: If they commenced on 18 November, they are within the 21-day period, as I understand it.

PN30

MR BLIGNAUT: Let me just look at the statutory declaration. Clause 6.2 of the statutory declaration:

PN31

Specify the date the agreement was approved by a valid majority of employees.

PN32

It is from 27 October to 18 November.

PN33

THE COMMISSIONER: I thought you just said it commenced on 18 November. Yes, they both say that, so the approval by the valid majority wasn't obtained until 18 November, because that was the last occasion on which the vote was taken.

PN34

MR BLIGNAUT: The last occasion on which the vote was taken, yes.

PN35

MR DAVEY: With respect, Commissioner, it might have been before that. It would have been whenever there was more than 50 per cent had actually voted, wouldn't it? The stores are spread over the State, Commissioner.

PN36

THE COMMISSIONER: Well, is anyone in a position to tell me when the valid majority was obtained?

PN37

MR DAVEY: I will just get some instructions.

PN38

THE COMMISSIONER: I think part of the confusion arises, doesn't it, because there is only one employer and despite what schedule F says, there is one employer, Ritchies Stores Pty Limited, which is ACN041814? That is the situation.

PN39

MR BLIGNAUT: Yes, one employer and a number of stores.

PN40

THE COMMISSIONER: Yes, that is not unusual.

PN41

MR BLIGNAUT: Some of the stores have four or five employees.

PN42

THE COMMISSIONER: Yes, I understand. I mean, Coles Myer Limited is one employer and it has many more stores than Ritchies, so there is nothing unusual about that. It is just the way it has been described in the agreement, that we somehow talked about the stores being the employer when, in fact, Ritchies Pty Limited is the employer. Is that right?

PN43

MR BLIGNAUT: Yes.

PN44

THE COMMISSIONER: And the locations at which it carries on business where this agreement is applicable are those particular places.

PN45

MR DAVEY: Yes, I don't know that we can really clarify, other than to say that the votes at the various stores took place between those dates and we have got the dates at which the vote was taken at each store and I am instructed by Mr Burley, the organiser that attended those meetings, that no-one voted against the agreement, at which time there was actually a majority. I can't give instructions to the Commission because of - - -

PN46

THE COMMISSIONER: But it is presumably some date before 18 November?

PN47

MR DAVEY: It would have been at a time where more than - where the 50 per cent quantum was passed.

PN48

THE COMMISSIONER: So we had better deal with the extension of time issue then first of all. It is pretty clear that if the matter was lodged, as it was, lodged on 3 December, then the 21 days was around about 18 November, wasn't it? No, it is a bit earlier than that, it is about the - - -

PN49

MR DAVEY: 8th.

PN50

THE COMMISSIONER: No, that would take you to 29 November.

PN51

MR DAVEY: So about the 10th or 11th.

PN52

THE COMMISSIONER: The 12th, to be precise, I think, and we just don't know. It may have been that by 12 November, a valid majority had been obtained, but I think to be excessively cautious to the extent that it is necessary, I should grant an extension of time, put it in those terms. My reason for doing that is because there is some uncertainty regarding the date on which the valid majority was obtained. It may have been that the valid majority was obtained before 12 November in which case an extension of time would be required. The circumstances were that the ballot was carried out over a period of time commencing on 28 October and concluding on 18 November and to the extent necessary, I grant an extension of time for lodgment in this matter. I think the circumstances certainly justify that. Okay, let us get on with the agreement and compliance with the Act. Who wishes to go first? Yes, Mr Blignaut.

PN53

MR BLIGNAUT: I would say the agreement complies with the Act, Commissioner, and if there is any questions, I would be pleased to answer them.

PN54

THE COMMISSIONER: Yes, I am just a bit interested in these variation provisions we have got. I take it that those calculations of the increase in the ordinary rate, the argument is that they would accord with the requirements of the award. Is that the situation? How does the balancing thing come into play?

PN55

MR BURLEY: This is schedule D. It puts a value on selling certain things. This comes out of the existing agreement and it is a carry on from the previous one, excepting in relation to work on a Saturday and the buy-out figure for a Saturday was down at six per cent and that was for the buy-out of the Saturday. Now, the six per cent was deficient and so that has been removed from one agreement to the other, so we are down to the Sunday now. We used to have it on the Saturday also, but the history of it is the five per cent buy-out for the RDO is the value of the RDO.

PN56

The second one on the list is the six to eight o'clock. Back when people were getting time and a half and double time, that 1.5 was the equivalent to two hours' time and a half and then you see the six to nine, under the old system way back when, that would have been two hours time and a half and one double. This system was created to simplify it for the office workers in small places to work it out. Rather than have to go through the wage books every year, they would strike an agreement what the hours would be and they would apply the percentages to it.

PN57

THE COMMISSIONER: How does that compare to the requirements of the award?

PN58

MR BURLEY: The award way back when?

PN59

THE COMMISSIONER: No, the current award.

PN60

MR BURLEY: The current agreement?

PN61

THE COMMISSIONER: No. There is an award of this Commission applicable to Ritchies Stores Pty Limited, I presume.

PN62

MR BURLEY: Well, Ritchies have always worked under the Master Grocers' Association Agreement.

PN63

THE COMMISSIONER: I understand that, but I have got to compare - what I am obliged to do in applying the no disadvantage test is to determine whether there is a disadvantage compared to the safety net award. Now, is Ritchies a party to the safety net award?

PN64

MR BLIGNAUT: Commissioner, if I can come in there, it is a Master Grocers Australian Meatworkers' Union that has recently been simplified in 2003. That is the comparative award that underlies this agreement. Ritchies as a member of the Master Grocers' Association - - -

PN65

THE COMMISSIONER: Is bound to that award?

PN66

MR BLIGNAUT: Is bound by that award.

PN67

THE COMMISSIONER: Okay. Now, how do these rates in this agreement compare to those rates?

PN68

MR DAVEY: My instructions are they are exactly the same.

PN69

THE COMMISSIONER: So when we get to the penalties, well, they can't be because there is a three per cent increase. The agreement provides for a three per cent increase.

PN70

MR DAVEY: My instructions are so did the Master Grocers' Agreement.

PN71

THE COMMISSIONER: No, I am not talking about an agreement, I am talking about an award. The award can only be varied - you see, what Mr Blignaut is telling me is that there is an award called the Master Grocers' AMIEU Award, is that right?

PN72

MR BLIGNAUT: Yes.

PN73

THE COMMISSIONER: Which is an award that has been simplified and it provides wage rates which are the safety net against which the agreement must be judged.

PN74

MR BLIGNAUT: Commissioner, if I can come in again, as I understand it, the wage rates in the agreement are more favourable than the wage rates specified in the award.

PN75

THE COMMISSIONER: Yes, I understand that is probably likely. How much more favourable and how do the penalty rates compare to the penalty rates prescribed in the award?

PN76

MR BLIGNAUT: I can take instructions.

PN77

THE COMMISSIONER: People have signed a statutory declaration here telling me that it is in advance of the award and it would appear that the AMIEU doesn't even know about the award. Can I just say the difficulty arises when I go to the statutory declaration. Well, if people aren't listening to me, I might as well not say anything. The declaration by Ms Flanagan says there is no reduction at all at 7.4. The declaration by Mr Bird doesn't tick that box, so that raises doubts in my mind about whether there is a reduction. I appreciate that the AMIEU usually does agreements well in advance of the meat awards that are awards of this Commission, but the statutory declaration, there is a statement that certification wouldn't result in a reduction in the overall terms and conditions of employment and Mr Bird has ticked that box, but ultimately that is for the Commission to judge. That is why we then asked the question, if there is any reduction at all and there is a tick box, no reduction at all or specify relevant clauses, so the Commission can then make a judgment as to whether there is an overall reduction. Now, the company's representative has said there is no reduction at all. Are you in a position to tell me whether there is a reduction at all, compared to the award?

PN78

MR DAVEY: My understanding of the situation is when the first of these agreements was done, the wage rates paralleled those that were in the award, the award has remained static in relation to the wages and this is the second lot of increases that puts the wages at Ritchies in excess of the underpinning award.

PN79

THE COMMISSIONER: Are you saying that the underpinning award hasn't had living wage increases applied to it?

PN80

MR DAVEY: I don't know, Commissioner.

PN81

THE COMMISSIONER: Because when was the previous agreement struck?

PN82

MR DAVEY: Three years ago, Commissioner.

PN83

THE COMMISSIONER: And you say that the rates in the award at that stage were the same as the rates in the agreement?

PN84

MR DAVEY: I thought it was the time before that, Commissioner.

PN85

THE COMMISSIONER: And what was the increase provided in the agreement - sorry, when was the time before that? Six years ago?

PN86

MR DAVEY: Yes, Commissioner.

PN87

THE COMMISSIONER: Okay, then three years later there was an agreement. What sort of wage increase did it provide for?

PN88

MR DAVEY: Our recollection, we don't have it here with us, three per cent each year for three years, so a total of nine per cent.

PN89

THE COMMISSIONER: So a nine per cent increase over those three years, so it would then be nine per cent in advance of the award, had the award not received any living wage increases.

PN90

MR DAVEY: Yes.

PN91

THE COMMISSIONER: But if the award had received living wage increases - - -

PN92

MR DAVEY: Assuming that we applied to have those - - -

PN93

THE COMMISSIONER: Or the Master Grocers did, yes.

PN94

MR DAVEY: I am unfortunately not in a position to be able to - I have no knowledge of what took place.

PN95

THE COMMISSIONER: So arguably that would leave you somewhat in advance of the award.

PN96

MR DAVEY: I would think.

PN97

THE COMMISSIONER: Not very much, but somewhat.

PN98

MR DAVEY: I would think, certainly.

PN99

THE COMMISSIONER: At the expiry of the first agreement, then we come to the second agreement which is the one we are now replacing, what did it provide?

PN100

MR BLIGNAUT: Commissioner, if I may just come in, attached to one of the statutory declarations is a summary of the major changes in the agreement.

PN101

THE COMMISSIONER: Yes, but that is the changes to the agreement by comparison to the previous agreement. I am seeking to understand what the comparison is. I am not interested in how this agreement relates to the previous agreement. I might be interested, but from the point of view of the legislation, I am not interested. What I need to be assured of is how the agreement compares to the award, because the award is the safety net that provides the no disadvantage test.

PN102

MR DAVEY: The agreement reflects changes on 1 June of each year during the agreement. It doesn't appear to express them in terms of a percentage, but in a monetary form. For example, the rate for butcher goes from $553.90 to $564.00 and then to 575. My mental arithmetic is insufficient to enable me to put a percentage on that, but it would be fairly small. Yours might be better than mine, Commissioner.

PN103

THE COMMISSIONER: It is about $25 in 550, isn't it, which is less than - so it is about five per cent over the term of the agreement.

PN104

MR DAVEY: And I assume, I know one shouldn't assume things, I assume obviously that the first one was also an increase from the previous agreement which we don't have here and it may well have been what is the expression, front-loaded or back-loaded so that the first increase might have been more than the other two, but I can't say that with any authority.

PN105

THE COMMISSIONER: And the current agreement provides for a three per cent pay increase on certification and then it provides for something else, clause 23. Would you like to tell me what that something else is? Would you like to have a look at clause 23 of the agreement, of the current agreement? It looks pretty generous on my reading of it.

PN106

MR BLIGNAUT: Are you talking about the agreement to be certified?

PN107

THE COMMISSIONER: Yes, at clause 23.1. I can read the words. I am wanting to know what it means. It looks to me like they get three per cent now, then at the end of the first month they get $8.60. I am talking about a butcher now. Then at the end of the second month they get $8.64 up to the end of the sixth month. Now, I suspect that that is not what - well, maybe it is, but that looks pretty generous, six-monthly increases of $8.64.

PN108

MR DAVEY: Mr Burley will explain that.

PN109

THE COMMISSIONER: Yes, Mr Burley.

PN110

MR BURLEY: What it was, Commissioner, was a three per cent up front fee and then there was an increase on six monthly intervals.

PN111

THE COMMISSIONER: That is not what it says, though, is it?

PN112

MR BURLEY: This will be followed by six-monthly increases of $8.64.

PN113

THE COMMISSIONER: Yes, and I am just saying that can be read as six monthly increases of $8.64, increases each six months of $8.64.

PN114

MR DAVEY: So there should be a comma after the six.

PN115

THE COMMISSIONER: Well, I think it probably should be this will be followed by increases each six months of $8.64, but that is what is intended.

PN116

MR DAVEY: Yes.

PN117

THE COMMISSIONER: Okay, we have got that on the record. I didn't think that they were going to be as generous as my reading of it.

PN118

MR DAVEY: I presume, Commissioner, now that that is recorded on the record, there can't be any argument about it in the future.

PN119

THE COMMISSIONER: That is my intention. Mr Blignaut, is that your understanding of the situation?

PN120

MR BLIGNAUT: Yes.

PN121

THE COMMISSIONER: So it is increases each six months of $8.64 and $7.33.

PN122

MR DAVEY: Yes, sir. In the pamphlet that was distributed to the members, it was explained in much clearer terms, wages will be increased by 30 per cent on certification. The increase will be followed by - - -

PN123

THE COMMISSIONER: Thirty per cent?

PN124

MR DAVEY: Sorry, three per cent, the increase will be followed by increases every six months of $8.64, etcetera.

PN125

THE COMMISSIONER: So that is in fact attached to Ms Flanagan's - I presume it is your submission that that takes it well in advance of the award?

PN126

MR DAVEY: Yes, Commissioner.

PN127

THE COMMISSIONER: Yes, okay. Mr Blignaut, is there anything further you wish to add about this?

PN128

MR BLIGNAUT: No.

PN129

THE COMMISSIONER: Look, I am just going to get a copy of the award. My Associate is getting a copy of the award, so we will just go off the record while that happens.

OFF THE RECORD

PN130

THE COMMISSIONER: Is there anything further the parties wish to put in relation to this matter?

PN131

MR DAVEY: No, Commissioner.

PN132

THE COMMISSIONER: Very good. This matter is an application for the certification of an agreement known as the Ritchies Stores Pty Limited and Master Grocers' Association of Victoria Limited and Australasian Meat Industry Employees' Union Certified Agreement 2003. During the course of the proceedings, we have confirmed that the amendments that have been made to the agreement as lodged in the Commission were consistent with what was put to the employees when a valid majority was obtained for the agreement and I am satisfied that the agreement as amended is the agreement that is properly before me.

PN133

I am also satisfied on the basis of the undertakings given that the increases provided in the agreement are to be applied at each six months after the initial increase contained in the agreement and not monthly for six months, as the agreement seems to describe, but in the light of that explanation, I propose to order transcript so there can be no dispute about it and that is quite clearly what the parties intended. I am satisfied on that, not only because the advocates this morning have confirmed that, but also because the leaflet that went out to the employees which is attached to Ms Flanagan's statutory declaration makes that very clear.

PN134

I am also satisfied that the agreement meets the tests prescribed in the legislation and in particular meets the no disadvantage test. I have had the benefit of an examination of the relevant award which is the Master Grocers' Association of Victoria Limited and Australasian Meat Employees' Union Award 2003, not 1995 and, as I said, I am satisfied it meets the no disadvantage test and otherwise the agreement meets the tests prescribed in the legislation. I come to that view based on the submissions of the parties today, a consideration of the statutory declarations and an examination of the agreement. Accordingly, I have certified the agreement with effect from today's date. It will remain in force until 16 December 2006. The proceedings in the matter are adjourned. Thank you.

ADJOURNED INDEFINITELY [11.10am]