AG2004/3630, Transcript of Proceedings [2004] AIRCTrans 2475 (2 July 2004)

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TRANSCRIPT OF PROCEEDINGS

O/N 11984

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT DUNCAN

AG2004/3630

APPLICATION FOR CERTIFICATION
OF AGREEMENT

Application under section 170LJ of the Act
by the Shop, Distributive and Allied Employees
Association and Another for certification of the
Diab Services (Pizza Hut Stores) Agreement 2003

SYDNEY

11.34 AM, TUESDAY, 22 JUNE 2004

PN1

MR D. BLISS: I appear for the Shop Distributive and Allied Employees Association.

PN2

MS E. FERRIER: I seek leave to appear for Diab Services Pty Ltd and with me is MR G. HYLAND, human resources manager for the company.

PN3

THE SENIOR DEPUTY PRESIDENT: Thank you, Ms Ferrier. Any problem.

PN4

MR BLISS: No, your Honour.

PN5

THE SENIOR DEPUTY PRESIDENT: Leave is granted, Ms Ferrier.

PN6

MS FERRIER: Thank you.

PN7

THE SENIOR DEPUTY PRESIDENT: Mr Bliss?

PN8

MR BLISS: Thank you, your Honour. Your Honour, this is an application to certify the Diab Services (Pizza Hut Stores) Enterprise Agreement 2003. The application by its nature was a little unusual from the run of the mill enterprise agreements which the union normally certifies and there are a number of matters which the union would like to take you to in order. Primarily, the key issue which we would like to take you to a little later is the no disadvantage test matter which we think is critical.

PN9

Your Honour, before I go to that though I think there is a couple of housekeeping matters which we do need to attend to. One of those was that we were advised by your associate that pages 2 and 3 were missing from all copies of the final agreement. If I could hand up a copy of those two pages please, if it pleases. Your Honour, those documents actually clarify another matter which was a question which arose upon the filing of these documents, and that is what the commencing date of the agreement would be.

PN10

I can advise the commencement date would be the date of certification by the Commission, notwithstanding that there is an agreement between the union and the company that employees were to be paid the wage increases which are contained in this agreement at the time the agreement was validly voted in majority. If I could advise that our members and non-members alike were paid the wage increases contained in this agreement commencing from 13 April 2004. Those wage increases are already in place.

PN11

Your Honour, as some background I think I should take you to in regard to this matter, it has been a long and complex negotiation, partly due to the fact that the Diab group of companies or Diab Services Pty Ltd is a franchisee of Pizza Hut. It runs a number of operations in the Sydney Metropolitan area. There are 12 locations, 11 of which, to the best of the union's knowledge, are purely what I would describe as take-away or delivery units. That is, there is no restaurant or sit-in services at those units.

PN12

There is one other location which I believe is at St Andrews which is still a restaurant. Restaurants, as I understand it, are generally being phased out of the Pizza Hut business. I understand that they are not as profitable as they used to be and therefore the nature of the Diab group of companies has changed significantly, we would say, since 1999 when the current agreement which is in place, which is the Diab Pty Ltd certified agreement 1999, certified by Commissioner Cargill in Sydney on 31 May 1999, was certified.

PN13

On that occasion, the appropriate instrument identified by the parties for the purpose of the no disadvantage test was the Restaurant Employees State Award. Due to the change, we would say that the more appropriate instrument which has been identified in the affidavits filed with the application is now the Shop Employees State Award. The special shops provisions cover fast food outlets in New South Wales. So there has been a significant change and therefore the test which is appropriately given has changed also. I might ask whether, your Honour, you would like me to hand up a copy of the current agreement which is in place with the Diab - - -

PN14

THE SENIOR DEPUTY PRESIDENT: Yes, it may be useful. I won't mark it, Mr Bliss, but I will certainly no doubt have reason to look at it. Yes, it is a formal copy of it so that makes it even less necessary to mark it.

PN15

MR BLISS: Thank you, your Honour. The second document which I think I should take you to is the Pizza Hut SDA National Employee Relations Agreement 2001. If I could describe it in this way. This agreement covers the rest of the field being the arm of the Restaurants International Limited Company, formerly known as Tricon Restaurants Australia Pty Ltd which is the franchisor and, as I understand it, is the - holds the majority of Pizza Hut outlets in New South Wales and the ACT also for, as I understand it, if not the bulk of all other franchisees, all other franchisees bar Diab Services Pty Ltd. If I may hand up a copy of that particular certified agreement?

PN16

THE SENIOR DEPUTY PRESIDENT: Yes.

PN17

MR BLISS: Your Honour, as identified in the affidavit signed by Joe De Brewin, the national secretary of the union, this agreement for all intents and purposes is a mirror agreement to the agreement which is before you today. There are some slight variations but - and the key differences being that the agreement before you today does not cover delivery drivers and the other key difference being that it is very short in to term. We are seeking the agreement before you today to be certified from today's date and then to nominally expire on 6 September 2001. There is also - - -

PN18

THE SENIOR DEPUTY PRESIDENT: 2000 and?

PN19

MR BLISS: Sorry? 2004, I apologise, 6 September. As is necessary due to the change, the wages increases have been compacted and are very much shortened up. The Pizza Hut SDA National Employee Relationships Agreement 2001 provided wage increases once every 12 months. This agreement before you effectively has all of the wage increases paid up to the final rate which is contained in that agreement. That final rate is for the 100 per cent grade CSA3, $502.60 per week for a full-time adult. If you could note that particular rate, that is quite important for the purposes of comparing it to the other rates which I will take you to.

PN20

THE SENIOR DEPUTY PRESIDENT: What was it again?

PN21

MR BLISS: $502.60 per week. Your Honour, the next two documents which I will hand up to you together are a copy of the Consolidated Shop Employees State Award and also a copy of the Consolidated Restaurant Employees State Award. Your Honour, as I've indicated previously, the union and the company have identified the Shop Employees State Award as being the appropriate instrument for the purposes of comparison.

PN22

The Shop Employees State Award currently has a full-time adult rate of $506.80 per week for shop assistants and salon. The Shop Employees State Award also, in comparison to the Diab Services agreement before you today, contains improved penalty rates for Saturdays and Sundays, the Saturday penalty rates being time and a quarter and Sunday penalty rates being time and a half. Also fixed loadings for casual employees who work on a Saturday in lieu of the time and a quarter payable. There is also a higher casual loading. The casual loading under the Shop Employees State Award is 24.6 per cent. That is the 15 per cent plus the one twelfth annual leave loading and that compares to the 20 per cent loading which is payable under the DIAB agreement.

PN23

There are probably a number of other considerations which I could take you to in detail for the purposes of comparison but I don't intend to submit at any stage today that the agreement before you compares more favourably. So therefore unless you would like me to lay out the pros and cons on both sides in more detail, I don't seek at this point in time to go to those other matters.

PN24

THE SENIOR DEPUTY PRESIDENT: Well, that will not be necessary if you are in effect accepting that it does not pass the no disadvantage test.

PN25

MR BLISS: That is correct.

PN26

THE SENIOR DEPUTY PRESIDENT: There is no need to take it further.

PN27

MR BLISS: Thank you, your Honour. Your Honour the last two documents which I will take you to are the documents which have some relevance in regards to the ongoing discussions of I guess disputation between the parties leading up to this. There are two matters which are currently before the Commission which feed into some background for this certification. One is that the union lodged a section 99 dispute with DIAB Proprietary Limited some time ago and as a result of that section 99 notification of industrial dispute, Commissioner Lawson, on 11 March 2003, made a finding of dispute between the parties.

PN28

The second thing which the union has done to facilitate reaching an agreement was to file a section 170MH(1) application to terminate the existing certified agreement in the public interest after the nominal expiry date. If the Commission pleases, I am happy to hand up a copy of both those particular documents.

PN29

THE SENIOR DEPUTY PRESIDENT: Yes, thank you.

PN30

MR BLISS: Your Honour, I provide these documents just to give you some further background about the extensive efforts which have been undertaken by the parties to reach some agreement. Obviously the agreement which has been reached, I would say particularly, is a bargain which has been reached in good faith by the union and the company. Now, I say that on the basis that the union had extensive negotiations with the DIAB group of companies dating back to around about the time that the existing agreement expired.

PN31

The union made offers early on and I will - unless there is some objection I would willingly say that the union made a number of offers during the course of those negotiations. One of which was to create a roll-over agreement in the same terms as what the DIAB group's competitors or competitor franchisees currently pay. Now, that offer was made early in the negotiations. The parties then went on to examine a number of alternative options to finalise an agreement.

PN32

In the end, those alternative options did not reach a conclusion and it was unsuccessful and therefore the parties, after extensive consideration around about October last year, agreed that a roll-over agreement in the terms currently before you would be the most appropriate way to conclude the negotiations and deliver real wage increases to employees who would otherwise be still on around about $465 per week, which is close to $41.80 less than what the award currently provides for in New South Wales.

PN33

Your Honour, I have handed up these documents to provide some background to where the parties have got to. I understand that one of the key issues which the Commission needs to take into consideration when parties make application to certify an agreement which does not pass the no disadvantage test is section 170LT(3) which particularly provides for the following. If the only reason why the Commission must not certify an agreement is that the agreement does not pass the no disadvantage test and (b) the Commission is satisfied that certifying the agreement is not contrary to the public interest, the agreement is taken to pass the no disadvantage test.

PN34

So the union would submit that for the Commission to successfully certify this agreement today it would have to be satisfied that the agreement, despite not passing the no disadvantage test, is not contrary to the public interest. The union has researched a number of decisions in regard to this matter and we would seek to hand up three decisions. Those decisions being a decision of Senior Deputy President Harrison in Sydney on 16 July 1998, which was the Chubb Security Darling Harbour Ranges Enterprise Agreement 1998. The print number of that decision is Q3596.

PN35

The second decision the union would seek to hand up would be a decision of the Full Bench of the Commission in Melbourne on 8 April 2003, being the Bakers Delight Certified Agreement WA 2003 and the print number is PR930120. The third decision, your Honour, is a decision of your's regarding an Australian workplace agreement, the decision being in Sydney on 11 October 2001, being a section 170VPB(3) reference and the print of that particular decision is 910198. If I could hand up those decisions for your consideration.

PN36

Your Honour, the first decision deals with the certification of an agreement which, on its face, did not satisfy the no disadvantage test and Senior Deputy President Harrison's consideration of the principles upon which it would be appropriate to certify such an agreement. It is clear from this decision and also an appeal of this decision - which I unfortunately was not able to find a copy of on the internet this morning, but with the benefit of my friend I think I can hand up a copy of that decision for you.

PN37

The union submits that the effect of those two decisions was really two things. Number one, section 170LT(3) operates as the test. It is not limited by section 170LT(4) which is merely an example on the circumstances in which the Commission can actually agree to certify and that was the critical decision of the Full Bench in the appeal of that matter regarding whether or not you can certify an agreement which fails to pass the no disadvantage test.

PN38

The second issue goes to the nature of a public interest test is a discretionary value judgment. It is not something which can be easily measured in those circumstances but obviously the Commission can consider a range of matters in exercising that discretion. The union submits that one of the reasons why the Commission should certify this agreement is that the parties have reached the terms of this agreement, as I would describe it, on an interim basis.

PN39

One of the key factors which has been guiding the negotiations is the competitive differences between the DIAB group of companies and other franchisees and Yum Restaurants International. What was a very important consideration in those negotiations was therefore ensuring that one party was not given a competitive advantage via wages and conditions vis-a-vis what the other party was receiving. In those circumstances, the parties, once they were unable to reach or to broker a bargain suitable for that particular set of circumstances, fell back to another agreement which had been certified by the Commission, being the Pizza Hut SDA National Employee Relations Agreement 2001. So the agreement will give no competitive advantage to either party and indeed, the agreement which is sought is on the same terms as an agreement already certified by this Commission.

PN40

The second issue is that it is really on a short-term basis and we believe that apart from the Chubb Security decision we have provided to you, your Honour, we say the decision of the Bakers Delight Certified Agreement, a decision of the Full Bench, which dealt with the issue of a short-term change. In this particular instance the union understands that employees were currently operating, or employed, under the terms of WAWAs, or Western Australian Workplace Agreements.

PN41

With their abolition via the State Government in Western Australia, employees were then required to transfer across to superior terms and conditions under an award. Now, that was going to impose a substantial obligation upon the employees at a very short term to come up in regards to a number of their conditions of employment. Therefore, the Full Bench in that circumstance, agreed to certify the agreement on the basis that by moving the labour costs, as I understand it, rather than up by 22 per cent, up by 11 per cent through the terms of this particular agreement, facilitating improvements on an ongoing basis but in the first instance on a short-term basis to assist the parties.

PN42

The other decision which the union refers to is your Honour's decision regarding an Australian workplace agreement and there were a number of matters which your Honour took into account in that particular decision and I refer to paragraph 7 of that decision where five considerations were given by yourself, being (1) the employer is largely a voluntary operation; (2) the employer provides a club for social and fund-raising activities and (b) sporting facilities for juniors and others at minimal cost to social players and free to juniors; (3) it has made a trading loss for the past 3 years; (4) the term of the AWA is 12 months from the date of the employment advocate's file and receipt and while it was not clear from the file when that occurred, it is clear from correspondence from an officer of the employment advocate to the employer that it must have been before 20 June 2001.

PN43

There is an undertaking to review, at the end of 12 months and this means a review must begin no later than June 2002; and (5) the AWA provides an opportunity to the employees to gain new experience. Your Honour, the union would particularly take you to the fourth round in this particular instance and indicate that the short-term nature of this agreement is really an approach by the parties to bring some parity within the industry in terms of terms and conditions.

PN44

I would note, without going to any of the detail, that the union has commenced negotiations with Yum Restaurants International and its franchisees to negotiate a new replacement agreement for the balance of the industry. I would also note that one of the terms of the agreement which is before you, which is at clause 3.2, is that the parties agree to consult 3 months prior to the expiry of this agreement to endeavour to ensure that it is renegotiated prior to its expiry date.

PN45

Now, the union would submit that it will be sitting down with DIAB Services Proprietary Limited in the very near future if this agreement is certified today to do exactly that. So on that basis the union would seek to certify this agreement in that we would submit that your Honour has the capacity to make a discretionary judgment taking into consideration all the other relevant issues surrounding the negotiation of this agreement and the competitive situation within the industry to assist the parties by certifying the agreement.

PN46

The union would also say that there was one further matter which we understood needed to be addressed in conjunction with the affidavits which have been filed which were primarily relied upon and that is a query as to whether clause 7.3 of the agreement offends section 170LU(2)(a). Now, section 170LU(2)(a) deals with provisions within the agreement which contravene Part XA of the Act and the provision which has been identified deals with this issue of a stand-down provision which involves consultation with the National Secretary of the union should DIAB Services wish to enact that particular provision.

PN47

The union is unaware from its examination of Commission decisions of any particular note of where stand-down provisions have been deemed to be offensive towards the freedom of association provisions of the Workplace Relations Act. We are aware of a number of decisions of the Commission dealing with the objectionable provisions. Generally those decisions have dealt with union-friendly clauses, if I could describe them as same.

PN48

I would indicate for your Honour's benefit that at clause 5 of this agreement and in the documents handed up to you today there is a union-friendly clause. It doesn't require that people join the union but it does indicate that the employer recognises the rights of people to join the union and for the union to represent its members' interests and whilst it indicates that the employer's policy will be that employees join the union, we would say that that doesn't offend the objectionable provisions of the Act in that if employees request, or do not wish to join the union, they will not be forced to do so.

PN49

This was something which was considered in the decision of the Commission, McDonalds Australia Limited v The Shop, Distributive and Allied Employees Association re McDonalds Employees SDA Agreement 2003. We would submit that there is nothing objectionable to this particular provision. If it requires certain undertakings in accordance with section 170LU that it will not be used in an offensive manner, the union is more than happy to make those particular undertakings.

PN50

The intention is not for people to be required to join a union, simply that employees will be told about the union and encouraged to join if they wish to. If they do not wish to join they will not be forced to do so. If there are any other queries which your Honour may have in regards to that matter, I am a little bit at a loss as to understand the particular issue which you may have a concern about regarding the stand-down provision. I am more than happy to - to the best of our ability - to explain what the position is if there are any further questions. Other than those matters, the union seeks to rely upon the affidavits filed in support of the application and seeks for the agreement to be certified as and from today's date, if the Commission pleases.

PN51

THE SENIOR DEPUTY PRESIDENT: Very well, thank you, Mr Bliss. Yes, I must confess in regard to clause 7.3 I don't now see the difficulty I apparently had earlier. So we will go on today's approach.

PN52

MR BLISS: Thank you, your Honour.

PN53

THE SENIOR DEPUTY PRESIDENT: Ms Ferrier.

PN54

MS FERRIER: Yes, thank you, your Honour. The matters pertaining to the agreement generally have been fairly comprehensively covered by Mr Bliss. I would simply add a few brief comments, particularly in relation to your discretion as to whether the agreement should be certified notwithstanding the fact that it does not pass the no disadvantage test having regard to the Shop Employees State Award.

PN55

Firstly, as Mr Bliss has already pointed out, this agreement is for a very limited duration and contains a commitment to continue discussion in relation to the terms and conditions of employees for DIAB Services. So we say in that regard that this agreement creates a foundation for the parties to continue discussions and negotiations around terms and conditions. Simultaneously with that it delivers significant pay rises for employees of DIAB Services in the range of approximately $30 to $40 per week, which, as I said, is a significant pay rise.

PN56

Given what Mr Bliss has said in relation to parity in terms of conditions, we say on that basis it promotes the continuation of employment of employees for DIAB Services because it allows DIAB Services to remain competitive with other franchisees which currently are in the market-place, covered by their own national certified agreement. On that basis, too, it also brings employees' terms and conditions into line with other employees providing light services to other companies who are other franchisees within the Pizza Hut market-place. Finally, we also point out, your Honour, that the agreement was supported by a fairly substantial valid majority of employees, who will be covered by the agreement, which is set out in annexure A to the statutory declarations filed in this matter.

PN57

On that basis we say that certifying this agreement would not be contrary to the public interest and, as I said, provided a meaningful framework for ongoing discussions with regard to terms of conditions of employment, and delivers real wage outcomes to employees of Diab Services. As regards to procedural matters in terms of implementing the ballot and the certified agreement generally, we rely upon the statutory declaration signed by Mr Hyland, and say that the process undertaken by the company and the SDA satisfies the requirements of the Act. Unless the Commission has any further questions, I have no more to add, your Honour.

PN58

THE SENIOR DEPUTY PRESIDENT: Thank you, Ms Ferrier. Mr Bliss, I note that in a Bakers Delight decision the Full Bench was able to say that the employees had the opportunity to be fully informed before voting on the agreement. Can you enlighten me as to the position in this matter?

PN59

MR BLISS: Your Honour, annexure B to the affidavits which have been filed provides the plain English summary of the agreements, or the changes to employees' terms and conditions of employment as was rolled out. The union held a number of consultative meetings on a site by site be it basis with employees to explain the changes, including the fact that employees would be receiving a number of changes to their existing conditions. Being first of all an 8.1 per cent wage increase, bringing their existing rate from 465 per week to 502.60 per week.

PN60

In addition to that there was a change in the relativity structure for the employees, with savings provisions for existing employees so they would not be disadvantaged in any regard. Also provided for a number of other matters including the absorption of the laundry allowance since the base rate of pay for new employees, existing employees would continue to be paid their existing laundry allowances. Improvements in the sick-leave provision. Rather than 38 hours in the 1st year of employment, and 61 hours for the 2nd and subsequent years of employment, the agreement would provide 64 hours for every year of employment for permanent employees, and pro-rata for part-time.

PN61

Extension of compassionate leave. General improvements to the annual leave provision to ensure that high grade rates were being paid on an appropriate basis. Whilst the parental leave provision is simply, we would say, improved to bring it up to community standard, and that was that casual employees engaged on a regular and systematic basis would be entitled to parental leave after 12 months of service. A range of other smaller changes to the agreement. Your Honour, those explanation meetings went through with employees in detail both the improvements and the losses, if I could describe it that way, to their existing agreement.

PN62

In terms of explaining the position vis-a-vis the award, that was not done. The employees were simply provided an explanation of what their existing conditions were versus what was proposed on the table, and that was fully explained to the employees at that time. Comparisons to the Shop Award, and on a limited basis to the Restaurant Employees State Award, weren't provided to employees at that time, they were simply given the explanation document.

PN63

THE SENIOR DEPUTY PRESIDENT: In the Pizza Hut SDA National Employee Relations Agreement 2001, was that approved notwithstanding that it didn't pass the no disadvantage test, or did it pass the no disadvantage test?

PN64

MR BLISS: As I understand it, the decision, your Honour, was that it satisfied all the relevant parts of the Act. I do not believe that there was a submission, or there was any requirement at that particular point in time for the parties to submit that it failed to meet the no disadvantage test, and therefore should be certified in the public interest. It was simply approved like any other agreement which did satisfy the no disadvantage test. I believe, and I would have to be provided more details to talk with any great authority on this matter, that it is partly due to the fact that National wage case increases over the past 3 years had outstripped what the parties envisaged at that time would be the appropriate level of wages going forward.

PN65

That has meant that whilst the intention of the parties was to maintain it above a particular level it has generally fallen behind over that time. The other thing to bear in mind, your Honour, is that the comparison test for the Pizza Hut SDA National Employee Relations Agreement 2001 is not the Shop Employees State Award, it is actually the underpinning Pizza Hut SDA National Employee Relations Award 2000. Now, the current rate which is applicable in that Award for grade 3 is $528 per week. That is yet to encompass the $19 wage increase from the National wage case decision this year.

PN66

So that rate will go to $547 per week, effective from 22 March, I believe 2005, but I would have to check when the appropriate variation date with 12 months difference would be applied from. As the Commission would appreciate this is very much a highly sensitive, and also a very important issue for the union as part of its EBA negotiations with Pizza Hut at the moment. I'm not at liberty, obviously, to discuss those in the public forum.

PN67

Those are issues for the parties to discuss, but I can say through my own dealings with the union that the union is very serious about raising the wages within that agreement up to an appropriate level. We would say an appropriate level obviously at this point in time would be $528 per week, with $547 per week being applicable in the near future. That is the direction the union is taking, whether or not that is actually what happens I could not say.

PN68

THE SENIOR DEPUTY PRESIDENT: Yes, thank you, Mr Bliss.

PN69

MR BLISS: Thank you, your Honour.

PN70

THE SENIOR DEPUTY PRESIDENT: I'm not sure whether this emerged during proceedings. Is this a first agreement?

PN71

MR BLISS: No, your Honour. This is a replacement agreement for Diab Pay Limited Certified Agreement 1999.

PN72

THE SENIOR DEPUTY PRESIDENT: That is right.

PN73

MR BLISS: It is a section l70LJ application, I believe, in conversations with your associate I've indicated previously that it was listed as a 170LL Greenfields Agreement.

PN74

THE SENIOR DEPUTY PRESIDENT: Yes, this one.

PN75

MR BLISS: Yes.

PN76

THE SENIOR DEPUTY PRESIDENT: Yes.

PN77

MR BLISS: It was that the union and the company made application on a section 170LJ basis.

PN78

THE SENIOR DEPUTY PRESIDENT: In 1999?

PN79

MR BLISS: In 1999?

PN80

THE SENIOR DEPUTY PRESIDENT: I know you did it on this occasion, that I'm aware.

PN81

MR BLISS: Yes, yes, it was a section 170LJ agreement at that time. I believe that was the first agreement at that stage and employees coming off the Restaurant Employees State Award and Shop Employees State Award base at that particular time, with the Restaurant Employees State Award being the appropriate instrument to determine for comparative purposes at that stage.

PN82

THE SENIOR DEPUTY PRESIDENT: And the result of that being the relevant award, did it or did it not pass the no disadvantage test?

PN83

MR BLISS: It did pass the no disadvantage test. I've handed up a copy of the Restaurant Employees State Award. I might indicate for your benefit that - - -

PN84

THE SENIOR DEPUTY PRESIDENT: What is the rate in that?

PN85

MR BLISS: Yes; unfortunately it is not page numbered but if you go to the second last page to Part B, monitoring rates, there's a wages table which is available there. It provides for grades 1 to 7. I will take you to grade 3 and then take you to the text within the award which defines what grade 3 tasks are. The grade 3 rate is $497.90 and that is after the State wage case 2003 decision had been implemented. Obviously the $19 determined by the Full Bench of the New South Wales Industrial Relations Commission is yet to be applied to those rates.

PN86

The $497.90 is the existing rates which is for grade 3 functions, and at clause 3.1.3 of the award grade 3 employees are defined as an employee who is primarily engaged in one or more of the following. It includes preparing and cooking a limited range of basic food items such as breakfast, grills and snacks, and I will just summarise here, your Honour: waiting duties, preparing and serving a range of drinks, receiving, storing and distributing goods not involved in the control of a store or cellar, security work and assisting in the instruction on a one-to-one basis of employees of a lower grade.

PN87

The union believes that CSA3 within this agreement is the appropriate comparative grade for the purpose of these particular types of tasks. Therefore on the face of this the $497.90, which is the rate within the Restaurant Employees State Award, is surpassed by the $502.60, which is the rate which will be paid to employees or has been paid to employees since 6 May and will be paid in accordance with binding agreements certified by the Commission if the agreement is certified today in accordance with what the union and the company have submitted. So it is marginally below that rate at this particular point in time.

PN88

The union wouldn't submit that on that basis the agreement before you satisfies one state instrument but not the other. We believe, without going into a detailed analysis but on the face of our brief analysis of this particular award, that the Restaurant Employees State Award with other penalty rates and loadings which apply within it in comparison to the DIAB agreements - without those penalties and loadings or reduced loadings and penalties would still not satisfy the no disadvantage test, so we don't believe it will be appropriate to make a submission that it satisfies one instrument but not another.

PN89

We believe that it clearly does not improve conditions beyond the Shop Employees State Award and it would be a marginal prospect at best if it was to pass the test in accordance with the Restaurant Employees State Award. We believe the appropriate test for the Commission to really apply in today's particular instance where we are seeking the public interest test to be applied will be to look at what other franchisees and competitors selling the same range of goods and the same products to the public are applying, and we would say that one of the considerations the Commission should bring to bear in this instance is that it is a short-term basis upon which this agreement is certified and the parties are committed to sitting down and negotiating an agreement which does satisfy the no disadvantage test in the near future.

PN90

THE SENIOR DEPUTY PRESIDENT: What are the rates in the Pizza Hut SDA National Employee Relations Agreement? What are they currently?

PN91

MR BLISS: $502.60 is the current CSA - - -

PN92

THE SENIOR DEPUTY PRESIDENT: They are the same rate as in this agreement?

PN93

MR BLISS: That is right. Clause 9.2.1A of the Pizza Hut SDA National Employee Relations Agreement 2001 provides for rates of pay for other than delivery drivers in New South Wales, the ACT and the Northern Territory, and CSA3, which is the 100 per cent rate, is $502.60, so the rate is identical.

PN94

THE SENIOR DEPUTY PRESIDENT: Very well. I will reserve my decision.

PN95

MR BLISS: Thank you, your Honour.

PN96

THE SENIOR DEPUTY PRESIDENT: I adjourn this matter indefinitely. I adjourn the Commission for 5 minutes.

ADJOURNED INDEFINITELY [12.22pm]