AG2004/3220, Transcript of Proceedings [2004] AIRCTrans 2095 (4 June 2004)

AUSCRIPT PTY LTD
ABN 76 082 664 220

ADMINISTRATOR APPOINTED

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 2730

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER RICHARDS

AG2004/3220

APPLICATION FOR CERTIFICATION
OF AGREEMENT

Application under Section 170LK of the Act by
Hertz Australia Pty Limited for certification of
the Hertz Australia - Queensland, Quality Inspectors'
Workplace Agreement 2004/2005

BRISBANE

10.00 AM, TUESDAY, 25 MAY 2004

THIS MATTER WAS HEARD BY VIDEOLINK
AND RECORDED IN BRISBANE

PN1

THE COMMISSIONER: Good morning, everyone. Please take a seat. Perhaps if I could take some appearances, thanks.

PN2

MR R. IRONMONGER: Yes, Commissioner. My name is Bob Ironmonger from the Victorian Employers' in Melbourne. I have MS HELEN GARBUTT from the company, and in Brisbane we have MR MICHAEL MOORE, who is the Branch Manager, and MR SHANE LOGAN, who is the employee representative. I'm not too sure which order they're sitting in there.

PN3

THE COMMISSIONER: That's all right. Mr Ironmonger, over to you, if you like.

PN4

MR IRONMONGER: Thank you, Commissioner. This is an application by Hertz Australia pursuant to section 170LK of the Workplace Relations Act. There should be a statutory declaration provided by Mr Moore and Ms Garbutt, which is on the Commission's file. We rely on those statutory declarations, Commissioner. We did forward to you, yesterday, an email copy of a wage comparison, as you directed. Hertz Australia have a number of agreements around the countryside, and this agreement is exactly the same as the one the employees previously had for the last period, although this one has a wage increase of 4.7 per cent for an 18-month period. Unless there any specific questions the Commissions may have, we would seek certification, Commissioner.

PN5

THE COMMISSIONER: Can you just give me some background? This agreement pertains to which Hertz outlets, these - - -

PN6

MR IRONMONGER: Hertz locations are at Coolangatta - or Surfer's - the Gold Coast locations; Cairns; Boondall; and Brisbane City. There is another agreement which is currently being negotiated for the Brisbane Airport, and the company has agreements, all different locations around the countryside.

PN7

THE COMMISSIONER: Yes, as you probably understand, this is what is at the back of my mind as to - the making of that agreement, if at all, is in - well, there are agreement-making processes - let me put it generically, like that - afoot at the airport - - -

PN8

MR IRONMONGER: Yes.

PN9

THE COMMISSIONER: - - - and that's a differentiated workplace, is it, for the purposes - - -

PN10

MR IRONMONGER: That's correct.

PN11

THE COMMISSIONER: - - - of this agreement?

PN12

MR IRONMONGER: Correct, Commissioner, although the previous agreement - there was a Brisbane agreement which did cover these locations. The employees elected to have their own - to leave the airport separate from these negotiations, and they have reached an agreement where the - we're still negotiating - well, with the airport, and we're negotiating around the countryside at various times when these agreements come up for renewal.

PN13

THE COMMISSIONER: Okay. The application clause for the agreement - the application clause reads - and I quote:

PN14

This agreement shall apply at Hertz Australia Proprietary Limited - Queensland locations, Gold Coast, Cairns, Brisbane City Council, and Boondall to all employees bound by the Vehicle Industry - Repair, Services and Retail Award 2002 -

PN15

And I underline the phrase, "to all employees bound - - -"

PN16

MR IRONMONGER: That's correct.

PN17

THE COMMISSIONER: "- - - by the award".

PN18

MR IRONMONGER: Yes.

PN19

THE COMMISSIONER: Is that the case, that the agreement does apply to all the employees?

PN20

MR IRONMONGER: No, no, sorry, Commissioner. That means the people who have got classifications under the Vehicle Industry - Repair, Services and Retail Award. It does not apply to the clerical people. Yes.

PN21

THE COMMISSIONER: So - - -

PN22

MR IRONMONGER: They are a separate - separate entity.

PN23

THE COMMISSIONER: Yes. So it doesn't apply to the - the application clause doesn't apply to clerical employees?

PN24

MR IRONMONGER: No, no. I'm sorry for the misunderstanding. It's the quality - - -

PN25

THE COMMISSIONER: It's only to, effectively, the - it's the detailers, isn't it - - -

PN26

MS GARBUTT: Yes.

PN27

MR IRONMONGER: Yes.

PN28

THE COMMISSIONER: - - - in essence? Okay. So the application clause applies to the detailers but they're not - they're the quality inspectors now, aren't they? Is that - that's right.

PN29

MR LOGAN: That's right.

PN30

MR MOORE: Correct.

PN31

THE COMMISSIONER: QIs, if I recall, from the airport - my airport experience. That said, does it apply to all people engaged in classifications relevant to quality inspection? And the reason I get - because I'm looking at the parties bound clause - - -

PN32

MR IRONMONGER: Correct.

PN33

THE COMMISSIONER: - - - and I see the parties bound as represented as "all full-time and permanent part-time QIs".

PN34

MR IRONMONGER: That's correct, Commissioner.

PN35

THE COMMISSIONER: But when I look at the wages clause, I note that at 12(d) - sorry, at 12(e) of the wages clause, "Casual employees shall be paid at the award rates".

PN36

MR IRONMONGER: That's correct, Commissioner, yes.

PN37

THE COMMISSIONER: Now, the connections I'm trying to forge in my own mind - well, I'm just trying to link up the dots, is probably the best way to say it - is: does the agreement apply to casual employees?

PN38

MR IRONMONGER: No, it doesn't, no. That's why the parties bound distinguish the full-time and permanent part-time quality inspectors, all right - and the (e), it just makes a statement of the fact that the casuals are bound by the award.

PN39

THE COMMISSIONER: Okay. So the application clause is to all employees, so we've got - clause 3 is to all employees bound by the Vehicle Industry - Repair, Services and Retail Award 2002, but that's except clerical employees and except people employed as casuals.

PN40

MR IRONMONGER: That's correct.

PN41

THE COMMISSIONER: For the purposes of the making of this agreement, did casual employees vote?

PN42

MS GARBUTT: No.

PN43

MR IRONMONGER: No, sir.

PN44

THE COMMISSIONER: So no casual employees voted?

PN45

MR IRONMONGER: No. There was a consultative committee established. Mr Logan can advise you about that process.

PN46

THE COMMISSIONER: All right. Yes. So the application clause is generic, isn't it?

PN47

MS GARBUTT: Yes.

PN48

MR IRONMONGER: That's correct, Commissioner, yes. I can take the point that you're raising; we probably would have 50 or 60 of these generic-type agreements around the countryside.

PN49

THE COMMISSIONER: Yes. See, it requires clarity, doesn't it? See, the parties bound clause is merely the - well, I'm not saying "merely", but it is a clause that works to identify the parties who are obviously bound by the agreement.

PN50

MR IRONMONGER: That's correct.

PN51

THE COMMISSIONER: The application clause defines the scope and application of the agreements - the scoping provision of the agreement and - - -

PN52

MR IRONMONGER: Yes.

PN53

THE COMMISSIONER: - - - and it requires - I think if you're at all versed in Munro Js explorations of the requirement for accuracy in application clauses, you will appreciate what I mean, that the - - -

PN54

MR IRONMONGER: I have appeared before his Honour on several occasions.

PN55

THE COMMISSIONER: Yes, and it is a point of some continuing and serious concern for him.

PN56

MR IRONMONGER: Right.

PN57

THE COMMISSIONER: And I think this is a matter on point, where we have an application clause which is somewhat disjunctive from other elements of the agreement in identifying the scope of the agreement. But you're telling me that the intent of the agreement was to only cover part-time permanent QIs, and there was never an intent to have the agreement apply to casual employees, irrespective - - -

PN58

MR IRONMONGER: That's correct.

PN59

THE COMMISSIONER: - - - irrespective of the broad, generic nature of the application clause.

PN60

MR IRONMONGER: Yes, that's correct. And if you'd like us to re-write that clause, we could probably do that for you.

PN61

THE COMMISSIONER: Well, I don't think I want to go into the business of amending an agreement which has been made, particularly on an important matter. It's a question of what the - - -

PN62

MR IRONMONGER: Yes, well, Commissioner, we'd note that for next time and then make sure we clarify it next time.

PN63

THE COMMISSIONER: Yes. Can I perhaps - Mr Logan, you're the employee representative; you can tell me. What was understood at the time as to whether or not casuals were to be subject to the agreement?

PN64

MR LOGAN: Yes, well, they made it clear to us that, basically - - -

PN65

THE COMMISSIONER: Well, when you say, "they", you mean the employer?

PN66

MR LOGAN: Sorry, the employees, yes, when we had our workplace agreement meeting. As I've attended a couple of these in the - over the last couple of years, and once again, you know, when - at the previous meeting they made it clear that it was only part-time - sorry, permanent part-times and full-time employees who would be bound. We were the only people that had attended the workplace agreement meeting. All the casual employees didn't attend the meeting with us, therefore didn't vote on the workplace agreement, so we were all in understanding that it was just the permanent part-times and full-timers that were part of this agreement.

PN67

THE COMMISSIONER: So for the purposes of the consultative committee and your representative role, the understanding of employees was that the agreement was an agreement that applied only to part-time and permanent - and, sorry, permanent part-time and full-time employees?

PN68

MR LOGAN: That's correct, Commissioner.

PN69

THE COMMISSIONER: That was the agreement that you were voting on?

PN70

MR LOGAN: That's correct, yes.

PN71

THE COMMISSIONER: Right. Okay, then. Look, I take your point, Mr Ironmonger. I think Mr Logan has given me sufficient understanding as to what the agreement was that was voted upon, and the understanding that was explicit at the time, and that satisfies me in relation to this concern I have over clause 3. But I would take the point that you have made as to drafting of agreement clauses in the future.

PN72

That said, the comparative schedule that you provided to me yesterday was essentially a comparison of wages. Are there any other matters you want to bring to my attention regarding any changes to conditions? I know the agreement is not a comprehensive agreement, therefore it is to be read in conjunction with the underlying award to the extent of any inconsistency, but bar that, are there any other matters that have substantively changed - that have changed any substantive provisions of the award in the agreement?

PN73

MR IRONMONGER: The only one that may - for your attention is - was the potential to buy out annual leave.

PN74

THE COMMISSIONER: Yes. No, I've - - -

PN75

MR IRONMONGER: But that's been there before, yes.

PN76

THE COMMISSIONER: I've noted that. In that sense - okay. So in that sense it's the range of matters you've dealt with vis-a-vis the award is somewhat limited in the scheme of things, in a relative sense.

PN77

MR IRONMONGER: That's correct, yes.

PN78

THE COMMISSIONER: Bar the buy-out provision, it's principally the wages components that are - - -

PN79

MR IRONMONGER: That's correct, Commissioner.

PN80

THE COMMISSIONER: - - - critical. I've examined those figures and there is - I'm perfectly satisfied that there is no deficiency relative to the prevailing award rates. That said, are there any other matters that the parties who are bound by this agreement want to put to me at all?

PN81

MR IRONMONGER: Not from this end, Commissioner.

PN82

MR MOORE: Not at this point, Commissioner.

PN83

THE COMMISSIONER: All right. Okay. That said, I am satisfied that the agreement has met the Act's requirements and I am also satisfied the rules of the Commission have been complied with to the extent necessary. I accept that there is some ambiguity as to the operation of the application clause, but on Mr Logan's submissions to me and Mr Ironmonger's submissions, I now have an understanding - which is reflected in transcript - of the actual scope of the agreement that was agreed to by the parties to this agreement. I therefore certify this agreement to operate from today's date through to its nominal expiry date of 30 September 2005.

PN84

I understand, from clause 5 of the agreement, that it was intended that the agreement come into operation on 1 April 2004 and to have a life through to 30 September 2005. The Commission can only certify it from the date on which it has certified it, and therefore, subject to anything that the parties might say or otherwise understand, the operation or life of the agreement is through to 30 September 2005. Is that your understanding of how the clause will work?

PN85

MR IRONMONGER: That's correct.

PN86

THE COMMISSIONER: Okay. Good. Thanks very much. We're adjourned.

ADJOURNED INDEFINITELY [10.14am]