AG2004/5132, Transcript of Proceedings [2004] AIRCTrans 2499 (5 July 2004)

AUSCRIPT PTY LTD
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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 2858

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER RICHARDS

AG2004/5132

APPLICATION FOR CERTIFICATION
OF AGREEMENT

Application under Section 170LK of the Act
by Wizard Hospitality Pty Ltd for certification
of the Wizard Hospitality Pty Ltd Certified
Agreement 2004

BRISBANE

10.03 AM, WEDNESDAY, 23 JUNE 2004

PN1

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

PN2

MR K.J. LAW: Appearing for the Restaurant and Caterers Employers Association of Queensland, Industrial Organisation of Employers. Appearing with me today is MR GERRY PINDER, director of Wizard Hospitality Proprietary Limited. Also present today is HAYLEY CARLA GIBBINS, the appointed employee representative.

PN3

THE COMMISSIONER: Good. Thanks, Mr Law. Would you like to make some representations in relation to the agreement?

PN4

MR LAW: Thank you, Commissioner. Commissioner, this is an application for agreement with employees under section 170LK, Division 2, of the Workplace Relations Act 1996. In compiling this certified agreement, the Hospitality Industry, Restaurant, Catering and Allied Establishments Award, South Eastern Division, the Hotels, Resorts and Certain Other Licensed Premises Award, State, excluding South-East Queensland, and the Club, etcetera, Employees Award South East Queensland we use as a safety net. These three awards are paid rates awards of the Queensland Industrial Relations Commission.

PN5

Wizard Hospitality Proprietary Limited employs full-time, part-time and casual employees. This agreement was made directly with the employer and the employees. This commercial business is located at Level 5, 231 George Street, Brisbane, 4000, in the State of Queensland. This commercial business is a personnel recruitment agency and employs quality food and beverage employees. This agreement applies to the business as a whole, as per section 170LB of the Workplace Relations Act 1996. Already filed with this Commission are the affidavits of Mr Gerry Peter Pinder and Miss Hayley Carla Gibbins. Both are present to answer any questions from this Commission.

PN6

Pertaining to the no-disadvantage test, they've also supplied to this Commission a comparison table of conditions attached to their respective affidavits, comparing the awards and the proposed agreement.

PN7

THE COMMISSIONER: Can I just stop you there, Mr Law. Mr Law, I take it from the comparative table and from the agreement that there are few substantive differences between awards and the agreement in this particular application.

PN8

MR LAW: Very few, Commissioner. Very few, Commissioner, yes. The major one is the wage rates, and they're only differing in some of the middle categories. But generally they're the same across the board. When you perused the agreement, you would have noted that the agreement does reflect the various areas that Mr Pinder employs staff in, either in cafes or restaurants, hotels, or in clubs.

PN9

THE COMMISSIONER: Yes, that's for selective application of the relevant award clauses.

PN10

MR LAW: That's correct.

PN11

THE COMMISSIONER: The rates themselves are superior to those in the award.

PN12

MR LAW: That's correct, Commissioner.

PN13

THE COMMISSIONER: And you're about to go there, I presume.

PN14

MR LAW: That's right.

PN15

THE COMMISSIONER: Good. I'll leave you to your task.

PN16

MR LAW: Thank you. Wizard Hospitality Proprietary Limited believes there is no disadvantage to any employee as a result of this agreement, hence believing this proposed certified agreement meets the principle of the no- disadvantage test, that is, section 170LT. Some other important elements of this agreement for the certification of the Wizard Hospitality Proprietary Limited Certified Agreement 2004 are:

PN17

(1) This agreement will be a three-year agreement as per clause 6 of the agreement and section 170LT(10).

PN18

(2) The agreement contains a grievance and dispute-settling procedure at clause 15. References are section 170LT(8) and 170LW.

PN19

(3) This agreement contains an anti-discrimination and sexual harassment clause at clause 35. This agreement is not discriminatory in any way. This reference is 170LU(5).

PN20

(4) The director, Mr Gerry Pinder, and Miss Hayley Carla Gibbins, the employee representative, have signed this agreement.

PN21

(5) No employee chose to contact the relevant union of employees to assist them in this process; no employees are a member of a union of employees.

PN22

(6) No employee was coerced in any way to agree to implement this certified agreement. The reference is section 170LT(9).

PN23

(7) No employee was unfairly omitted from the agreement.

PN24

(8) Prior to making the agreement, the employees were notified of the employer's intention to develop a certified agreement for Wizard Hospitality Proprietary Limited.

PN25

(9) On Friday, 14 May 2004 at 3.30 pm, the agreement was explained in full by the director, Mr Pinder. Each employee was provided with a copy of the proposed certified agreement for their consideration for a full 14-day period.

PN26

(10) Employees were advised prior to this meeting on 14 May by way of a notice, as attached to the affidavits of Mr Gerry Peter Pinder and Miss Hayley Carla Gibbins, that they could consult with a union, friend, family member, solicitor or similar professional, etcetera, should they so choose.

PN27

(11) Also on Friday 14 May 2004, the staff representative, Miss Hayley Carla Gibbins, was appointed by the staff with no involvement of the employer.

PN28

(12) Any inquiries from the proposed agreement were directed to the staff representative or the employer.

PN29

(13) Following the 14-day statutory period, Mr Pinder received a number of questions from the employees that required some minor amendments to the initial proposal. All questions were answered satisfactorily.

PN30

(14) The agreement was approved by a valid majority of employees on 4 June 2004, with the resulting vote being 100 per cent of all staff voting in favour of the proposed certified agreement.

PN31

(15) In clause 22, Commissioner, the review of wages clause of this proposed certified agreement, it says that it agrees in advance to carry out an audit review after the first 12 months of operations of the certified agreement to ensure that the percentage allocated to the payment of wages as set out in clause 18 is accurate. It also goes on to say that, should it be agreed that this figure needs to be amended upwardly, this will be implemented immediately. Any downward movement will be disregarded. The outcome of this audit review will be binding on all parties for the life of the agreement.

PN32

(16) The final agreement is now before this Commission seeking certification.

PN33

This proposed certified agreement is not inconsistent with any provision of the Workplace Relations Act 1996. It is the employer's and the employees' belief that this Commission has no reason not to certify this agreement. It is the opinion of the employer, the employees and the RCEAQ that this proposed agreement will give the business more flexibility in its operations, improve and stabilise rostering arrangements, realise productivity savings, ensuring more certainty and accuracy in the budgeting requirements, preservation of skills in the workplace and allowing for multi-skilling in the workplace, lowering staff turnover, creating greater staff loyalty and improving and enhancing career opportunities. Also, it is believed that there will be more opportunity for casual employees to realise full-time and part-time employment.

PN34

In conclusion, it is the employer's and the employees' belief that this agreement conforms to the requirements of the Workplace Relations Act 1996 and it is commended to the Australian Industrial Relations Commission for certification, if the Commission pleases.

PN35

THE COMMISSIONER: Thanks, Mr Law. Mr Law, just coming back to clause 18 and clause 22, when clause 22 refers to the percentage increases, it's referring to the percentage increases in the outlying years relative to award increases at the State level, is it?

PN36

MR LAW: That's right. That's correct, Commissioner, yes. In some of the previous matters I've been with you in the past, some of the organisations took into account the - sorry, increased their wages as per a State wage increase. In this case, it was agreed that 3 per cent be applied to each year and there won't be any further increases beyond that. Also, it's believed that that passes the no-disadvantage test. Also, that continues on further in relation to clause 22, which talks about the review of the wages for the purposes of the award, which I've just outlined.

PN37

THE COMMISSIONER: Yes. I'm just trying to work out the function of clause 22. Clause 22 states:

PN38

The employer agrees to commence an audit review after the first 12 months of the certified agreement's operation for the purpose of ensuring the agreed percentage as set out in clause 18.

PN39

The agreed percentage set out in clause 18 is accurate. Now, the agreed percentage in clause 18 refers to exactly which of the - this is referring to the 3 per cent increase, presumably, is it?

PN40

MR LAW: That's correct, Commission.

PN41

THE COMMISSIONER: Okay. So that's what the per cent - sorry, there are just numerous percentages through clause 18. But it's referring to the 3 per cent increase.

PN42

MR LAW: That's correct. Initially from the day of certification - and I'm going to take it as that might happen - there will be a 1.5 per cent, initially. Then in one year - we estimated the date being 30 June, which will be slightly before that now - it will be 3 per cent. And the following year, in 2006, it will be a further 3 per cent.

PN43

THE COMMISSIONER: Okay, so the review is about whether that - - -

PN44

MR LAW: Showing integrity, Commissioner.

PN45

THE COMMISSIONER: - - - that next 3 per cent instalment in 12 months time is accurate.

PN46

MR LAW: That's correct, Commissioner.

PN47

THE COMMISSIONER: And what does accurate mean?

PN48

MR LAW: Well, in case we find that a person might be disadvantaged, we can make the necessary adjustment.

PN49

THE COMMISSIONER: But disadvantaged in what respect?

PN50

MR LAW: Well, you know, if we put a 1.5 increase on using the current rate - should it be found that that 1.5 per cent isn't appropriate when the 3 per cent date comes along, we will make the necessary adjustment to both the 1.5 and 3 per cent.

PN51

THE COMMISSIONER: Oh, okay. That's right, I'm getting to what you mean, now. So I've probably read this rather literally. It appears to me that the work clause 22 does is to carry up an audit as to whether or not the 3 per cent is accurate, whatever that might mean. Well, 3 per cent is pretty accurate because it says 3 per cent.

PN52

MR LAW: Accurate means it passes the no disadvantage test.

PN53

THE COMMISSIONER: So what we're really saying is that clause 22 is your conventional audit clause that provides for review of the earnings over the previous 12-month period to see whether or not they have been less than would have been the earnings under the applicable award.

PN54

MR LAW: Yes, Commissioner. That's correct.

PN55

THE COMMISSIONER: That's the work that it actually does.

PN56

MR LAW: That's correct, yes.

PN57

THE COMMISSIONER: And if there is a discrepancy, it's to be rectified by how, exactly?

PN58

MR LAW: If there's a discrepancy in the figures, it will be rectified upwards immediately, in terms of the next increase that is coming along.

PN59

THE COMMISSIONER: So at the time of the next increase, any shortfall would be made good?

PN60

MR LAW: That's correct, Commissioner.

PN61

THE COMMISSIONER: Okay, and so that's how clause 22 works?

PN62

MR LAW: That's correct, Commissioner.

PN63

THE COMMISSIONER: I'm sorry, as I read it - and I'm wondering how an employee reads it as well. And I might well ask. But as you look at it, it states:

PN64

The employer agrees to commence an audit review after 12 months of the certified agreement's operation for the purpose of ensuring the agreed percentage as set out in clause 18 is accurate.

PN65

Well, the agreed percentage as set out in clause 18 is - well, there's an agreed percentage that comes on line at introduction, which is 1.5 per cent. Then there's a 3 per cent in 12 months time and 3 per cent in the beginning of the final year of operation of the agreement. But it's not really about that, is it?

PN66

MR LAW: Well, it's about ensuring integrity in your agreement, and if there's an error it can be adjusted straight away. We're saying in this hearing today that nobody will be disadvantaged, and I believe they won't be. But again, we're just running the audit just to ensure that that is the case.

PN67

THE COMMISSIONER: Yes. I'm just trying to work out that those words are indicating that that's how the audit will operate, that it will allow people in 12 months time to have a review of their wages against the applicable award and any shortfall would then be made up.

PN68

MR LAW: That's right, Commissioner.

PN69

THE COMMISSIONER: Is that what it means?

PN70

MR LAW: That's exactly right. In previous matters I've been before with you, we've put in clauses that give the employer the right to seek an audit review and also, should there be a discrepancy, that that matter will be adjusted without prejudice. In this case - - -

PN71

THE COMMISSIONER: In this case - - -

PN72

MR LAW: - - - we're giving that commitment in advance.

PN73

THE COMMISSIONER: Well, I'd have to say in this case it's easier to give that commitment in advance, given the composition of the workforce.

PN74

MR LAW: Yes, I think it is.

PN75

THE COMMISSIONER: Given that there's only two people, it's not a great transaction cost for you.

PN76

MR LAW: Well, at the present time. It's going to get a lot larger than that because of the agency itself.

PN77

THE COMMISSIONER: All right, okay. Okay, then. Can I ask Miss Gibbins, who is the employee representative. Miss Gibbons, is that your understanding of the function of clause 22 that I've just explained, that is, it does provide you with a - you understand your right to be that the employer will conduct a review of your wages in 12 months time to compare those earnings against the applicable award and to make good any shortfall?

PN78

MISS GIBBINS: Yes, I do, Commissioner.

PN79

THE COMMISSIONER: And that's how it was explained to you?

PN80

MISS GIBBINS: Yes.

PN81

THE COMMISSIONER: Right. In that context, and given that there are only two employees and you represent fifty per cent of the current pool of employees, if that's your understanding, I think it's sufficient for me that I don't require any undertaken with respect of clause 22 as a consequence. Thanks very much; you can take a seat. Thanks, Mr Law, for those submissions. I've considered the statutory declaration, comparative table and your submissions as well as the agreement itself and the contributions of Miss Gibbons as well. I'm of the view that the agreement meets the requirements of the Act in respect of this application and I will approve the agreement, consistent with clause 6 of the agreement, to operate for a period of three years from today's date. Thank you, we're adjourned.

ADJOURNED INDEFINITELY [10.18pm]