AG2003/9312, Transcript of Proceedings [2004] AIRCTrans 25 (8 January 2004)

AUSCRIPT PTY LTD
ABN 76 082 664 220

Level 7, ANZ House 13 Grenfell St ADELAIDE SA 5000
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TRANSCRIPT OF PROCEEDINGS

O/N 1218
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

DEPUTY PRESIDENT HAMPTON

AG2003/9312

APPLICATION FOR CERTIFICATION
OF AGREEMENT

Application under section 170LK of the Act
by St Remy Pty Limited and Another for
certification of The Store 157 - Certified
Agreement 2003

ADELAIDE

9.35 AM, THURSDAY, 11 DECEMBER 2003

PN1

MR SLATER: I appear on behalf of the company, from the South Australian Employers Chamber of Commerce and Industry, trading as Business SA. Sir, with me I have two friends of the Commission, MS BETH TATTERSON, Director of the Company, and ROSE BARTHOLOMEUSE, an employee who worked for the company, both are signatories to the statutory declaration, sir.

PN2

THE DEPUTY PRESIDENT: Good, thank you, Mr Slater.

PN3

MR SLATER: Sir, this is a joint application cited as case number AG9312/2003, that the case is made pursuant to section 170LK of the Australian Industrial Relations Act 1996 as amended. Sir, if I may at the outset just seek leave to amend the application very slightly in the terms of a couple of words that need to be changed. If I could take the Commission to clause number 19, sir, the first line headed, "offsetting over award payments". Sir, if you could delete the words "this agreement" and insert the words "the parent awards." That will then read in line with the heading of the particular paragraph. Sir, that is the only change I would seek leave to amend.

PN4

THE DEPUTY PRESIDENT: Well, look, in terms of the amendment of the agreement, perhaps you might just explain what you see is the difference and what effect that would have had on the understanding of the parties in terms of employee endorsement process.

PN5

MR SLATER: Sir, there are a number of over award benefits that are slotted in the agreement and in line with the heading, it just wasn't - it seemed to be - is probably consistent as it should be. The agreement is the agreement, what we are paying is over award payments from the two parent awards, the Retail SA Award and the Cafes' and Restaurants Award and the items listed in the document are over award arrangements that - in excess of those awards not this agreement.

PN6

The agreement in totality is basically a fairly stand alone document and seeks to probably clarify a few issues that have been longstanding with the company employees. The clause has been set up basically to probably assist the parties in terms of any under payment that may have occurred in previous arrangements and it is our intention to monitor those things on at least an annual basis, hence the warning of a second sentence in the paragraph.

PN7

THE DEPUTY PRESIDENT: I think that this clause, I take it, does not purport to deal with anything that occurred prior to the agreement?

PN8

MR SLATER: No, sir, it does not.

PN9

THE DEPUTY PRESIDENT: Only during the life of the agreement.

PN10

MR SLATER: The life of this agreement, should there be any under payment is going to be monitored by the company as part of our undertaking and certainly the - assessed and fixed up for the life of the agreement.

PN11

THE DEPUTY PRESIDENT: You say that was the understanding held at the time?

PN12

MR SLATER: Yes, sir, it was.

PN13

THE DEPUTY PRESIDENT: As to the meaning of the clause?

PN14

MR SLATER: Yes, sir, it was.

PN15

THE DEPUTY PRESIDENT: All right. All right, I note your application for leave to amend.

PN16

MR SLATER: Thank you, sir. Sir, this particular enterprise bargaining agreement, the certified agreement, only applies to the retail and cafe operations of the company, in particular the operations at 157 Melbourne Street, North Adelaide in South Australia. Sir, we submit the application before you is an order and certainly meets the requirements under Part VIB division 2 section 170LK of the Act.

PN17

Deputy President, by way of history, this is the second certified agreement to be sought by the companies and the party in relation to the operations in South Australia. This agreement will certainly replace and supersede all previous certified agreements and the appropriate State awards as proposed as a nexus in the relevant awards for the purposes of the no disadvantage test. This agreement is the Retail (SA) Award and the Cafes and Restaurants SA Award.

PN18

THE DEPUTY PRESIDENT: So perhaps if I could just stop you there. You say there is an existing certified agreement?

PN19

MR SLATER: My understanding from the previous owners of the business, there was an agreement in place. Now, I've had some trouble trying to track it down, but may well be an informal agreement that was never certified, but certainly the company took over the operations about 18 months ago, believe there was an agreement in place under the former owners and they have sought to follow that arrangement until now with the supersede of this - of that particular arrangement with this new agreement, with the new directors and new company name.

PN20

THE DEPUTY PRESIDENT: Did it trade as The Store 157 or - - -

PN21

MS BARTHOLOMEUSE: No, it was West-AG Services. It still traded as Store 157, but the previous owners were called West-AG.

PN22

MR SLATER: I'm having trouble trying to find that arrangement in the files.

PN23

THE DEPUTY PRESIDENT: I must say, Mr Slater, when I read the application in the agreement, I had a feeling of deja vu and I couldn't work out why - because I'm not aware of an agreement applying in this workplace and you may explained some of those circumstances. Look, it maybe that an agreement was made perhaps in the South Australian jurisdiction, but ultimately not proceeded with.

PN24

MR SLATER: That could be true, sir, yes. There was certainly a document or documentation that the company's directors are working to before this arrangement and I'm led to believe there is probably more an informal arrangement now than perhaps a certified arrangement. But we tried to sort out that mess on the negotiations and we couldn't find any official documents where the Commission would register our files back to Business SA to indicate it was a formal approach to ratify.

PN25

THE DEPUTY PRESIDENT: Perhaps one of the - can you confirm that the name of the previous business was West-AG?

PN26

MS BARTHOLOMEUSE: West-AG Services, I think it was hyphenated, two words.

PN27

THE DEPUTY PRESIDENT: Good, thank you. Mr Slater, whilst I've interrupted you, you were just talking about the two awards. Perhaps you might tell me a little bit more about the practical operation of this part of the business and then deal with the safety net award coverage in that context?

PN28

MR SLATER: Certainly, sir. The operation, if you like to put a dividing line through half of the store, one is a retail operation that serves vegetables and other items on a 7-day trading arrangement and the other part of the operation is basically cafe/restaurant where meals are served for a 7-day operation again. Sometimes the staff do intertwine duties in terms of serving customers, it is more of a full time operation in terms of retail, the people do work designated hours and more familiar with the retail operation.

PN29

For the best, at this particular junction, sir, in my experience to designate both awards in this agreement because of the diversity of the two operations but under the one umbrella so to speak in terms of the company directorship. In terms of both safety nets, the arrangement in terms of the schedule attached to this agreement, includes the safety for both awards. The shop assistant classification, Deputy President, is the one we've used and you will appreciate they have the same voluntary component in both awards as a base.

PN30

THE DEPUTY PRESIDENT: Yes.

PN31

MR SLATER: I've set out the appendix one, to indicate the bottom line in terms of the wages structure and to compare that with the award that is in place. We've used the one structure or one figure in terms of the base and most of it relates to the Retail Award.

PN32

THE DEPUTY PRESIDENT: Yes, look in terms of the existing award structure, just strikes me that there may be some differing about both awards applying in at least on face value, the Cafes and Restaurants South Australia Award appears to exclude employment of persons employed in connection with a cafe whether licensed or unlicensed which is located in or about a shop operated by an employer otherwise bound by the Retail Industry (South Australia) Award.

PN33

Now, that would seem again, on face value, to indicate that if the - the cafes inn or about a shop, and the shop is essentially covered by the Retail Industry of South Australia Award then the Cafes and Restaurants wouldn't apply and in that context it's the - it's the cafe and restaurants provisions which are actually - or the canteen provisions perhaps, that are in the Retail Award that may in fact at law, provide the safety net.

PN34

MR SLATER: That could be true, sir, I don't have a dispute with that. I guess they are two distinct operations in terms of my instructions, as a quite obvious delineation between the two operations in terms of the staff operate and those on a daily shift basis, their duties are quite distinct in terms of the shop versus the cafe.

PN35

THE DEPUTY PRESIDENT: I guess the critical question would be whether the cafe is located in or about a shop and I've taken that word - that expression directly from the persons being employees of the Cafes and Restaurants Award, where that exclusion appears.

PN36

MR SLATER: Well, I think in my experience and visiting the premises, and I will ask Beth to properly qualify that, but in my view, the cafe is definitely part of the shop arrangement. It is in one precinct, one premise and I guess with the terms of the land titles and things like that, the whole premises is included as a registered business of the operation.

PN37

THE DEPUTY PRESIDENT: All right, and is it licensed?

PN38

MR SLATER: Yes, it is.

PN39

THE DEPUTY PRESIDENT: And what sort of license does it hold?

PN40

MR SLATER: Unlimited or restricted license?

PN41

MS TATTERSON: Yes, I'm not exactly sure. Most of it is from 7 in the morning until 1 mostly, 1 or 1.30 or 1.30 - no, I think it is 1 at night. We actually close at 11, but we have the license until 1, but it is a restricted license I think.

PN42

THE DEPUTY PRESIDENT: Look, in broad terms, my understanding of the Liquor Licensing Act of the South Australian Parliament is that it would either a be licensed restaurant or it could be - - -

PN43

MS TATTERSON: Yes, I'm sure that it is a licensed restaurant.

PN44

THE DEPUTY PRESIDENT: - - - be a general facilities license, but I doubt it would be the second one.

PN45

MS TATTERSON: And I'm sure that it's a licensed restaurant.

PN46

MR SLATER: They do service clients and apartments across the road, part of the Old Lion precinct, sir, is part of their operation.

PN47

THE DEPUTY PRESIDENT: Just excuse me for a moment. Yes, look, arguably I think it is the Retail Industry (South Australia) Award that actually represents the existing safety net provided, it is given the exclusion of the Cafes and Restaurants Award and if you - ultimately if you reflect on that and have a different view, I would be interested to hear your position, Mr Slater, but for the moment I think that is certainly the - well, arguable or more than arguable that that is the situation. I don't know what consequences that will have because I've not been in a position to make any assessment prior to the hearing without knowing what is actually happening on the ground.

PN48

MR SLATER: Well, my understanding is it has been operating probably as a - certainly a retail operation prior to the current owners taking over. I guess the period from my experience is it probably has a more of a retail flavour than an actual cafe as such. The fact, I suppose are the wage rates and the safety net adjustments and things like that, in both awards have taken place and they are very similar. There would certainly be no disadvantage in applying one or the other award, but I would be of the view, sir, and probably support the one that you have got, in terms of the Retail (SA) Award, as a principle award to cover the operation at this time.

PN49

It may well cause some confusion to obviously have two awards, one in collectively the life of the agreement, but one would be far better placed.

PN50

THE DEPUTY PRESIDENT: Yes, well, look in that context I think there are two ramifications of that. One is that if my preliminary view is right about which award applies, then it is that award that I need to assess for the purposes of the safety net against which the agreement is measured. Secondly, I think there is an issue for the parties and that is if that view is right, what the agreement will do is it will establish two awards back into the workplace as well as the agreement of course and whether that is actually desirable given that it presumably the intent of the agreement is to have a common set of conditions in this workplace, given interchange between the two areas. I mean that ultimately is a matter for you and your clients, but it just strikes me that that is something that should be considered sort of independently of whether the Commission can certify the agreement or not.

PN51

MR SLATER: Yes, sir, I think our view was to try and simplify things as best we could and have one document, because certainly one award covering the operation would be far more beneficial, but we might have to do some internal documentation in terms of duties and responsibilities to make sure that things are measured up and quantified in writing properly. That has been the issue in the past when things haven't been quantified in writing and there has been some confusion and of course the parties have come to Business SA to try and correct that the best way we can in the agreement.

PN52

THE DEPUTY PRESIDENT: Yes, look, Mr Slater, it might also mean that the agreement is to be varied if you ultimately accept the preliminary position that I've put to you on that and if you accept the consequence then maybe the agreement needs to be varied to reflect that given the intention. But perhaps for the moment I will hear what it is you have to say about the agreement, but unless you put a submission to the contrary, it would be my intention to apply the Retail Industry Award as the safety net for present purposes and we will deal with anything that arises from that in due course.

PN53

MR SLATER: Thank you, sir. Sir, the parties, particularly the company and the employees jointly recognise that the future thrust of industrial relations in Australia is geared towards proper workplace consultation and certainly cooperation. This will lead to development, implementation and further enterprise bargaining negotiations. The end result being a certified agreement made between the parties. Sir, it is our submission that the particular document before you today, the agreement itself, the parties believe it adequately covers those issues and will certainly promote and facilitate future enterprise bargaining negotiations between the parties.

PN54

There has been some confusion in the past and hence my comments earlier about putting one document forward for the Commission to get it ratified. Sir, the thrust of this agreement, and certainly enterprise culture itself, is to build upon a continuous improvement model, best practise standards, particularly in the hospitality industry and this has a common thread in the overall companies business development strategy. This is particularly a high profile precinct in North Adelaide, as you would be aware, and our reputation is crucial to the success of the business in the hospitality sector in that part of Adelaide.

PN55

Sir, in the agreement itself, the prevention of settling disputes clause 27, certainly covers the issues that may be any dispute the companies. There is a no further claims provision in clause 20 and I can advise the Commission that all necessary statute requirements for the certification of the agreement are certainly met by the parties. I can confirm the agreement was agreed by valid majority on 17 November 2003, there being about an 87 per cent majority vote in favour of the agreement. Sir, the application was filed on 19 November 2003.

PN56

In relation to the agreement itself, Deputy President, the quantum wage increase is in excess of 10 per cent plus allowances and benefits which are further identified in clause 29 and certainly in appendix number one attached to the agreement. It is agreed by the parties that the operational date for the agreement is to commence from today's date of hearing 11 December 2003 and is for a period of 3 years. The expiry date is therefore agreed to be 10 December 2006, it will be up to the parties to negotiate a new agreement commencing 3 months prior to the expiry of the current agreement.

PN57

In terms of the dates, Deputy President, I request the Commission probably amend the agreement to read clause 6 and clause 29.1, the appropriate date of 11 December 2003. Sir, it is our further submission that the application does require the statutory declarations from all parties which are in accordance with rule 46 and 47 of the Act. I can advise the Commission in relation to section 170MG(2) and (3), the protection of certain interests of the category of employees.

PN58

Information obtained in a stat dec of Paul and Beth Tatterson and Ms Bartholomeuse is that there are 19 employees under 21. There are 45 casuals and 5 full-time. There are a total of 50 employees at the time of the ballot employed by the company and that breaks down to about 19 males and 21 females, Deputy President. It is our further submission that the negotiation process itself and the agreement does not discriminate against any employees and all relevant employees have been involved in negotiations and certainly covered by the agreement.

PN59

In conclusion, it is our request the Commission certify the agreement before you today cited as case number AG9312 of 2003 titled The Store-157 Certified Agreement 2003. Sir, that concludes my submissions on behalf of the company.

PN60

THE DEPUTY PRESIDENT: So perhaps you might like to tell me a little bit more about the ballot process?

PN61

MR SLATER: A number of - or 50 ballots were sent out in the appropriate format, Deputy President. They had a week to return those, most of these employees, you will appreciate, are students. We had a fairly high return rate. There were to my knowledge, about four not returned out the 50, and the rest being pretty much a high incidence of 87 per cent majority vote in favour. All ballots returned to the directors for counting and I understand Beth and Rose were present in the counting of the vote. All employees had an opportunity to discuss any issues with the drafts - with their employee reps.

PN62

No issues were raised and then we had to come back to being amended from the original drafts and the vote went ahead, I think is the best way to deal with the issues in terms of the students and the varying shifts that they work, rather than have a show of hands at a general meeting, it is a bit impossible to get most of them present, but that was the best result we could achieve given the time frame. The negotiations have probably taken place over a three to four month period.

PN63

They have been pretty open and frank and certainly we have tried to resolve a number of issues in terms of communication, consultation and getting issues back down to the shop floor so to speak, through the proper channels. I think at the end, the employee reps be commended for the efforts they have put in, they have certainly communicated issues particularly for me and Beth and Paul Tatterson very well and that certainly shows in the result that has been achieved at the ballot, Deputy President.

PN64

THE DEPUTY PRESIDENT: All right, good. Look, there are a series of issues that I want to raise about the agreement itself, but perhaps before I do that, perhaps Ms Bartholomeuse, if you want to say anything on behalf of the employees about the negotiation process and the ballot?

PN65

MS BARTHOLOMEUSE: I think most staff were pretty happy with the communications. They were just curious to find out when it was actually going to start happening, which I kept them informed the dates that we were going before the Commission.

PN66

THE DEPUTY PRESIDENT: Yes. All right, and from the management perspective anything to add about the process?

PN67

MS TATTERSON: No, sir, just basically we kept the communications happening and we sat down at all stages and talked about every step of the way and everything we had in here and crossed out things and put things in. It was quite a long process until we came up with what we have now and we think everyone seems really keen. By the time we got to it everyone had read it, you know, 15 million times and all they were really interested in was the bottom line, what are we going to get paid and when.

PN68

THE DEPUTY PRESIDENT: Understand. All right. Good, thank you. Ms Slater, I've got a series of issues of clarification about the agreement and perhaps just for convenience I will run through them in the order that they appear in the agreement. Although, you would appreciate that some of these are directly interrelated and of course, any provisions in the agreement itself dealing with hours of work raise issues associated with appendix 1, but I will do my best to keep this in some logical order. While this intends at clause 4 I've already the relationship to the parent award issue and that is a matter we may need to come back to.

PN69

If I can take you to clause 9 and this is one of those issues that also calls into focus the provisions of appendix 1. The ordinary hours of work that are specified in the start of clause 9, I believe I understand at least in general terms, although in due course I will need to know a little more about what actually happens in practice by way of rosters and trading hours, but putting the aside for a moment, the additional penalties are described at the bottom page 5, the expression is that:

PN70

All work on Monday to Saturday afternoons is 15 per cent, Sunday is at time and half or 150 per cent and public holiday is at double time.

PN71

I presume that means 20 per cent as per appendix 1. Now, in that context perhaps you might run through appendix 1 and explain to me how the various columns relate to the additional penalties that have been set out on page 5.

PN72

MR SLATER: What I've set out to do and what the parties were used to and try and incorporate an old sheet and their arrangements, was to show effectively what the award rate was at just ordinary hours and then raise them to the retail, even the cafes and restaurant businesses are the same award rate, the shop assistant. The EBA1 incorporates a casual loading of 20 per cent and 15 per cent pm penalty rate. So if you see the full time day rate would just reflect hours up to 6 pm to cover any - - -

PN73

THE DEPUTY PRESIDENT: Sorry. Under the heading, current rates, it says full time day rate?

PN74

MR SLATER: Day rate.

PN75

THE DEPUTY PRESIDENT: So what does that mean in practice?

PN76

MR SLATER: That will mean that when we work from 6 am to 6 pm they will be just the ordinary day rate for that shift Monday to Friday and what we do after a 6 pm because we do work to 1.30 am, is that we have an afternoon shift penalty of 15 per cent attached, on top of those rates and that is where EBA rate number 1 comes in to it.

PN77

THE DEPUTY PRESIDENT: So EBA1 rate is the full time day rate with the casual loading plus the 15 per cent?

PN78

MR SLATER: That is correct, sir. Yes.

PN79

THE DEPUTY PRESIDENT: Right, so although the heading is, full time day rate, under current rates that is effectively the rate that will apply under the 2003 agreement?

PN80

MR SLATER: That is right, sir. That will run for basically 12 months and then effectively on the anniversary of today's date the EBA2 rates will hit in and again there will be some adjustment in terms of State wage case arrangements and things like that, no one knows what they are going to be like in the next couple of years but was my experience that 10 per cent increase on the rates. We have rounded things up to the nearest 10 cents to be in favour for the employees too, to give us an easy way to administer the pay rates and pay sheets, so there's subtly more than 10 per cent attached to these particular increases but there was some confusion from the parties earlier in the way it was to be applied.

PN81

It was pretty much an underpayment mode in respect of the previous arrangements and at this particular time I think the parties clearly understand where we have tried to achieve a fairly good consensus and a document that can clearly show what the program increases will be for the next 3 years. This has been costed out by the directors a number of times and it is certainly - my instructions are, certainly affordable for the company. It is also gives an opportunity for these employees to increase their hours, to know exactly what their hourly rate will be and is our intention obviously that most of these people are casuals and our employer - leaving 5 full time employees.

PN82

There is the offer of more hours over a greater spread, the biggest problem for the company at the moment is trying to obtain employees to work certainly week-ends and those other afternoon shifts but by certainly applying what the award is to apply and setting it out in black and white there's no misunderstanding there by the employees of the company what the rates should be.

PN83

THE DEPUTY PRESIDENT: In that context is the second column, it is not actually a full time day rate, is it? It is actually the casual day rate under EBA1 that is what it is?

PN84

MS TATTERSON: Yes.

PN85

MR SLATER: That is true, sir.

PN86

THE DEPUTY PRESIDENT: Right, because EBA1 is not, with respect, it is not the EBA1 rate it is actually the casual rate.

PN87

MR SLATER: Was the current rate that exist at the time of certification of the agreement, more importantly but the full time classification or terminology is probably a misunderstanding in terms of what it does mean. What we are trying to do is distinctly show what the day rate is and what the pm rate is in terms of the operation and I think we have tried to achieve that in those three columns.

PN88

THE DEPUTY PRESIDENT: I must say the labels I find very confusing and in fact, with respect, misleading. So the columns are in reality the award rate, this is going from left to right, the award rate, the casual day rate under the EBA1, to use that expression, the next column is the afternoon casual rate.

PN89

MR SLATER: That is right, sir.

PN90

THE DEPUTY PRESIDENT: Then the Sunday casual rate and the public holiday casual rate.

PN91

MR SLATER: That is right, sir.

PN92

THE DEPUTY PRESIDENT: So in that context there isn't an ordinary time for - there isn't a rate for full time or non-casual specified in the agreement?

PN93

MR SLATER: No, sir. No.

PN94

THE DEPUTY PRESIDENT: Okay.

PN95

MR SLATER: I was just going to say those positions we do refer to are staff positions, supervisory.

PN96

THE DEPUTY PRESIDENT: But are they covered by the agreement?

PN97

MR SLATER: They are covered by the agreement, sir, but they are paid substantially higher in terms of the award, and particularly the managers and that have also got some other benefits applied to them in terms of staff arrangements but not sighted by the normal employee arrangements.

PN98

THE DEPUTY PRESIDENT: So if I can then take you back to clause 9 where those penalties are specified the additional penalties Monday to Saturday afternoons 15 per cent, when does that start?

PN99

MR SLATER: After 6 pm Monday to Saturday.

PN100

THE DEPUTY PRESIDENT: It only applies to the hours after 6 pm?

PN101

MR SLATER: Yes, it does, sir.

PN102

THE DEPUTY PRESIDENT: Or the whole of the shift if it extends beyond 6 pm?

PN103

MR SLATER: The whole of the shift because the premises - we close at 1.30, so all those hours after 6 pm for that shift will relate to the 15 per cent penalty.

PN104

THE DEPUTY PRESIDENT: But not if part of the shift started before 6 pm?

PN105

MR SLATER: No, sir, that is right.

PN106

THE DEPUTY PRESIDENT: No. So it is not really a shift penalty in the sense that a normal shift penalty, is as if you work a shift and the whole shift is part on that penalty rate.

PN107

MR SLATER: That is right.

PN108

THE DEPUTY PRESIDENT: It is an additional loading for work after 6 pm.

PN109

MR SLATER: For the hours actually worked after 6 pm, sir, that is right.

PN110

THE DEPUTY PRESIDENT: Right. Okay. Well, look I just point out that none of that is on the agreement I think technically apply, that would mean work after 12 noon, if that is Saturday or Monday afternoon. All right. I think the Sundays and the public holidays I understand the effect of that in terms of what intended. Ms Slater, look, while this is in the sense checking to the end of the series of questions I have I think it is now the time to raise this, I think I need to know a lot more about what hours and rosters are actually worked and what the trading pattern of the shop is, so that I can make some judgment given now that I understand what is intended here about whether or not all of that will meet the no disadvantage test.

PN111

MR SLATER: Sir. I mean, most of our work, at best, starts about 6 am, we have a shift where we do breakfasts for the Old Lion across the road that is a fairly regular requirement, contract and I think our coffee shop - - -

PN112

MS TATTERSON: We actually open at 7, we start at 6.30, we open at 7 and that shift goes to until 3 normally and then the afternoons come on at 3 or just before 3 and finish at 11 or the managers work on just what they are - reconciling the cash and stuff like that.

PN113

THE DEPUTY PRESIDENT: Yes, I understand.

PN114

MS TATTERSON: But we actually close at 11. The kitchen shuts at 10 and we close 11.

PN115

THE DEPUTY PRESIDENT: So effectively you have two shifts?

PN116

MS TATTERSON: Yes.

PN117

MR SLATER: Probably fair to say that most employees work one or the other or a combination of both.

PN118

MS TATTERSON: Yes, they can, there's combinations.

PN119

MR SLATER: Most would like to work a pm shift and others like to work a day shift, so to speak, but in terms of rostering it is pretty much a straightforward roster just two shifts across a week in advance.

PN120

THE DEPUTY PRESIDENT: So have you done any reconciliation as to what that pattern of hours produces against the Safety Net Award?

PN121

MR SLATER: No, I haven't, sir. No. Most of the construction of this document has been by my colleague, Mr Moore and I understand he probably hasn't done that, a strict comparison either but we were trying to do is obviously alleviate any potential underpayment claims by putting something in writing and actually clarifying exactly what they are entitled to in terms of penalties.

PN122

MS TATTERSON: Excuse me, can I just - - -

PN123

MR SLATER: Sure.

PN124

MS TATTERSON: My husband actually had - this is about comparing what the difference will be in what they are getting now to what they - - -

PN125

THE DEPUTY PRESIDENT: Yes, against the award.

PN126

MS TATTERSON: Yes. My husband did do that and there was I think maybe four instances where people would be actually paid less and all the rest were substantially above what they are getting now, so - you know, most of them was about 10 per cent increase and there was, I think, 5 instances where they had - I can't remember the percentage, but it was like $20 or something like that, that they would be behind.

PN127

THE DEPUTY PRESIDENT: All right, and what that depended on the amount of week-end work for instance?

PN128

MS TATTERSON: Yes, just depends where they were in the roster and it was just on that particular week we just had a look at it just to see how it would suit and on that particular week there was five and we couldn't really pick the pattern of why those five actually did it, so, no, but it was only a very small amount anyway. Most of them receiving about 10 per cent increase.

PN129

MR SLATER: Sir, my original position to the company was fair in excess to 10 per cent, more like 15 per cent across the 3 year period and we identified then that it was too excessive for the company to afford that sort of offer. I know Paul did do two or three calculations in terms of costings for his own benefit and certainly the 10 per cent plus rounding up of the subtle increases to the nearest 10 cents was well within the parameters and sir, that is how it has been explained to the employees that this was most affordable and most attractive and certainly was a fair better offer than they were currently working to. Certainly there one or two anomalies, as Beth just said, that were a glitch in the system and it wasn't meant to be a permanent glitch but I think that has been addressed now in terms of any other additional benefits that the company may well provide to the employees as we see is over award.

PN130

THE DEPUTY PRESIDENT: Mr Salter, I think I'm going to need to see that material or a summary of that, so that I can be satisfied that the package is not - sorry, that meets the no disadvantage test and in that context I need to know what assumptions have been made about that and obviously the Commission is obliged to take a global view of this, including the fact that presumably the hours will fluctuate according to employee preference and trading demand and possibly seasonal factors as well, so the Commission has got to take a global view of that. So any light you can shed any of that so that a fair comparison can be made, I would appreciate.

PN131

MR SLATER: Sir. Well, certainly I know Paul has that information available, it is just a question of getting it off him and supplying it to the Commission.

PN132

THE DEPUTY PRESIDENT: Well, perhaps then I will raise the other matters that arise but can I just say that I think in any event because of the issues that I've raised the agreement does have to be amended so it actually says what you mean because at the moment I'm not satisfied that it does and that will raise issues under the Act and also raise issues with the parties, particularly in terms of your objective to clarify where you are heading on it. I will talk about the consequences of that in a moment. Clause 15 which is conditions of employment, indicates that:

PN133

All employees who have not been appropriately trained or assessed will commence employment at classification level 1 of the relevant parent award.

PN134

I just wonder what that means in practice, given the classifications that are built into the agreement and the nature of the work here.

PN135

MR SLATER: Most of the employees would have a food hygiene certificate or some qualification from Regency Park TAFE, or have other experience in industry which we need to assess. We do go through a few staff over the year. I put that qualification now so there are some obligations on management to assess and check and chase things up in terms of qualifications. Until that is done, most of them would expect to start at level 1, the shop assistant level.

PN136

THE DEPUTY PRESIDENT: Bearing in mind that, as I understand it, there are only three levels, putting agents issues aside, there is the level one which is effectively the shop assistant, as I understand it. Then there is the supervisor responsible person position and then the shifts and managers.

PN137

MR SLATER: This particularly applies to the shop assistant level only where most of the staff employees we do get are initially under 16, 17, first job seekers from school. Most of these particular employees do not have any training and didn't have any awareness of food hygiene matters. The company is seeking, obviously, to train these people and put them through respective courses, but it would generally relate to the 16, 17 year olds first timers from school.

PN138

THE DEPUTY PRESIDENT: I am not sure what that means in practice, because there is only one potential level under the agreement?

PN139

MR SLATER: They are all shop assistants based on age classifications. I guess the important thing here is there is not gong to be too many people working at the adult level, given the hours we work and the arrangements we work, most of them are students.

PN140

THE DEPUTY PRESIDENT: But the clause says that they will be classified at level 1 of the relevant parent award. I am just not quite sure what that is designed to do, because the classifications are in the - does it mean that they will be actually paid under the parent award at classification 1?

PN141

MR SLATER: No, they will be paid under the criteria attached to appendix 1 of their age bracket, as required by the parent award. Someone that comes in at supervisory level, or a chef or manager, will far better qualifications and be appropriately trained, hence that clause wouldn't apply. They would have been pre-assessed by management as having the several requirements. The school leavers haven't been assessed in their first jobs and need to be probably given a week's experience -

PN142

THE DEPUTY PRESIDENT: Yes, but there is only one classification relevant, unless you are going to put someone like that in as a supervisor, which is highly unlikely.

PN143

MR SLATER: No, that is right, sir, but our experience with all the classifications that report to our shop assistants - shop assistants level 1, 2 or 3 - is just a shop assistant.

PN144

THE DEPUTY PRESIDENT: Yes, but in that context, with respect, shouldn't it say commence employment at classification level 1? The reference to the parent award, I think, creates difficulties because there is only one classification level in this agreement that would be relevant.

PN145

MR SLATER: I appreciate that comment, sir, and I agree with it.

PN146

THE DEPUTY PRESIDENT: Just in relation to 15.3 over the page, I don't think work outside of ordinary hours is otherwise addressed at all in the agreement. What is indicated there, I presume, applies to all employees and it indicates that time off in lieu of overtime will be as per the award. Does the Retail Industry Award provide for TOIL, or time off in lieu of overtime?

PN147

MR SLATER: It is my understanding it does. Again, it has been a practice that has been adopted or used in the previous informal arrangements and it has been seen to be carried over.

PN148

THE DEPUTY PRESIDENT: How would that work for a casual employee?

PN149

MR SLATER: Most casuals would probably want the time paid in terms of time off, but there are people that are doing study and would like an extra week off if they can accumulate some hours, to contribute. Not so much now because the exams are finished, but we did have trouble getting staff to attend the work because of study commitments and had they built up some time in lieu arrangements it would be quite satisfactory. It is very much a practical thing both for the employer and for the employee to work an arrangement. In order words, it would be amiss of me to probably leave it out because it has been in place for some two years.

PN150

THE DEPUTY PRESIDENT: You are right about the TOIL arrangements - that might be a little problematic in terms of their application to casual employees, but the fact is a workable concept in this workplace, I understand.

PN151

MR SLATER: The casuals at this stage, given the students, they do want to have their weekends off, so to speak, and not prepared to roster themselves on for weekends, and that's a fairly big problem for the company. But we try to be fairly flexible. Most of the reports back from those students who are part of the agreement have been very favourable in terms of that arrangement, and certainly the pay rates.

PN152

THE DEPUTY PRESIDENT: Thank you. I think you have already clarified clause 19 in your opening. Clause 29, which is wage, salary pay increases and re-negotiation of the agreement clause, indicates something which I think, in this copy at least is bolded, which is in the middle of 29.1, and it says:

PN153

Subject to the employee's rostered hours to be worked, the company agrees to apply a quantum increase, or increases, of approximately 10 per cent over the 12 months period as follows:

PN154

I am just wondering what the purpose of what looks to be a caveat or a rider or some sort of condition, what is the "subject to the employee's rostered hours to be worked" mean?

PN155

MR SLATER: Some employees will probably have to work the pm shift, as we call it, after 6 pm, will have a higher quantum wage increase as those working a day shift. That is just a rider - just a proviso - just to clarify that.

PN156

THE DEPUTY PRESIDENT: So the actual increase depends on what rostered hours are actually worked?

PN157

MR SLATER: Certainly - and over the Act. We did try and do, I think, ..... costing of annualised hours and things like that. So we've done it across a fairly good spread. Most of it, suffice to say, 10 per cent does not seem a lot or working casual hours, but when you combine it to working a pm shift it is quite - a 30 per cent penalty in anyone's language is a pretty good deal. The more hours you work the more advantageous it is, obviously, to keep that arrangement going.

PN158

THE DEPUTY PRESIDENT: So in that context, that clause is really an explanation of the general purpose or the intention of the parties. The actual rates are those which are specified in the schedule - sorry, in appendix 1?

PN159

MR SLATER: That is right, sir. As with my experience - always - best tells me to probably lay these things out in writing in terms of what your application is going to be, then you normally back that up in your appendix, in terms of the actual calculations, but it has been a general flow on here. I think most parties believe that a 10 per cent increase spread out over the three year period has been fairly generous, given the current economic climate. Certainly, it is very much an attractive point for keeping employees gainfully employed. There is very much a transient employment regime in this particular hospitality area, sir.

PN160

THE DEPUTY PRESIDENT: I understand. The last question that I wanted to raise goes to, again, back to appendix 1 which is on page 16. It is one of the notes - it indicates:

PN161

Junior employees are paid as per the relevant award junior rate percentages, plus a 15 per cent pm shift and casual allowance and scheduled agreement increases as shown above.

PN162

I presume, now that I have a better understanding of the way the appendix is intended to operate, what that means is if they work the 15 per cent pm shift they get the 15 per cent?

PN163

MR SLATER: What I am referring to is basically percentages as defined in the award, right under the identification column.

PN164

THE DEPUTY PRESIDENT: You have reflected them in the appendix 1 in any event?

PN165

MR SLATER: That is right, sir.

PN166

THE DEPUTY PRESIDENT: Perhaps if I can recap on a number of issues, and then invite some submissions as to where we go from here. It seems to me that there is an issue about the safety net award and, again, subject to any informed views you subsequently put to me, Mr Slater, I would intend to deal with this on the basis that there is one safety net which is mutually exclusive to the other and it's the Retail Industry South Australia Award that should be applied. In that context I think there is a serious question for the parties as to whether or not you do want to retain reference to the other award, because that might introduce more complexities that are one, not necessary and secondly, not consistent with the intent of the agreement.

PN167

MR SLATER: My recommendation is to probably advise your company that one award will be sufficient at this point in time for the reason you have outlined.

PN168

THE DEPUTY PRESIDENT: Secondly, I need to have further information about the training patterns and the roster patterns and any comparison that has been done, any reconciliation that has been done between the entitlements that the agreement would produce as against that safety net award. Thirdly, in any event, there are a series of points of clarification that would have to be made in any event, so that what I now understand to be your intentions are reflected in the agreement and they go to, in particular, what is set out in clause 9, hours of work, with respect to those additional penalties.

PN169

In particular, the afternoon penalty, how that operates and how that applies in practice. There are a couple of other matters that I have raised - 15.1 about the operation of classification 1 for employees that don't have any training or previous hospitality experience or assessment - clause 19, which is a matter you have already raised with me. More fundamentally than all of that, a reflection of the actual intention of the parties into appendix 1 and in particular to make sure that there is a column with a full time ordinary rate, to use that expression, the casual ordinary, or day rate might be a better expression, given the way that you have applied it.

PN170

What the column EBA1 actually represents - of course, all that needs to be duplicated in terms of what is to apply 12 months and 24 months after certification. In that context, Mr Slater, and particularly given the provisions of the Commonwealth Act and the way that has been applied by numerous recent Full Benches in terms of amendments to section 170LK agreements, it would seem to me that the appropriate course of action would be to do a revised document which incorporates all of those matters that will, however, have to be put back to the employees.

PN171

I don't have the discretion I do have under the state Act, except an amendment, and effectively make the amendment of my own motion. It is my view that I am not given that power as a member of the Federal Commission. An agreement under section 170LK, in my view, given the substantive nature of those amendments - particularly the alteration to delete one of the safety net award, in my view, needs to be reconsidered, so that needs to be put back to the employees in accordance with the Act. However, a fresh application does not need to be made.

PN172

You will need to follow the relevant processes in 170LK, but what I am foreshadowing is that I would grant you leave to amend this application by substituting a document which was subsequently endorsed by a majority of employees as a result of that process. Subject to being satisfied about the no disadvantage test, which relies on a consideration of material that will also be supplied, then it will be my view that the agreement would be certifiable, but I can't make that judgment until I see that additional explanation.

PN173

MR SLATER: It might be my recommendation that the company does show some industrial goodwill. That we make appropriate arrangements to flow this wage increase on, anyway, from today.

PN174

THE DEPUTY PRESIDENT: I was going to suggest that there would be nothing to prevent the parties, in terms of an amended document, actually putting today's date in as a gesture of goodwill. It would be consistent with the intention of the parties. Ultimately, if the agreement is certified, then that date will be relevant. What I will indicate, Mr Slater, is that I will be happy to deal with the matter on the basis of an amended document.

PN175

Obviously, the additional comparative material and some evidence in some form about that re-endorsement process by the employees. I indicate that if having received that material I have any additional reservations or matters, then I will raise them immediately with you on behalf of the parties with a view to having them addressed in a manner that is consistent with the Act.

PN176

MR SLATER: Given the so little time frame, I will be working through Christmas, at this point in time, but I shouldn't really be off on leave.

PN177

THE DEPUTY PRESIDENT: I am having a week off in the middle of January, but subject to that, I will be dealing with it immediately. I understand the investment that parties have made here, and the desirability of getting this finalised, particularly given the gesture of good faith which you have foreshadowed. I would do my part of that.

PN178

MR SLATER: It will be my intention to probably deal with the matter if the parties were available tomorrow, Friday, or early next week, and get it back to the Commission by the end of next week.

PN179

THE DEPUTY PRESIDENT: I think one issue you might need to think about is whether or not the 14 days need to be given. I will leave that with you.

PN180

MR SLATER: Or any variation to the document requires 14 days.

PN181

THE DEPUTY PRESIDENT: I think that is an unfortunate consequence, but that is the discipline we have to live with I am afraid.

PN182

MR SLATER: I will certainly be in contact with you in the interim period.

PN183

THE DEPUTY PRESIDENT: Yes, keep my office informed, so that I am better able to deal with it when it comes, because I understand the priority that needs to attend to it. As I said, I will undertake my end of that bargain, given the circumstances and the desirability of having this matter resolved as quickly as possible.

PN184

MR SLATER: My intention, then, is probably get a draft summary of what we have said today back to the employee reps so they can discuss it this afternoon or tomorrow at the earliest opportunity. If 14 days are required, then we are ready to go on the 15th day to get a show of hands and a ballot organised. I think the changes required will not cause too much angst amongst employees - certainly support it.

PN185

THE DEPUTY PRESIDENT: I doubt it very much, because if anything, they just clarify and improve what is already there, but that, for better or for worse, is the process which is required under the Workplace Relations Act, so that is the discipline we have to work with. Ms Bartholomeuse, is there anything you wanted to add to what I have heard? Do you accept the explanation of the way the agreement was intended to operate, as has been given to me? As Mr Slater has been clarifying matters?

PN186

MS BARTHOLOMEUSE: Yes, sir, I very much agree with everything that has been said - with the changes that need to be made, as well.

PN187

THE DEPUTY PRESIDENT: All right, good. Thank you. Unless there is anything further?

PN188

MR SLATER: Nothing further, sir.

PN189

THE DEPUTY PRESIDENT: All right. I will adjourn the application, with liberty to apply, but I do so on the expectation that in the normal course I will subsequently receive an amended agreement, the explanatory material and its comparison with the award, in the context of the actual rosters and trading hours, and some evidence about the fact, presuming a valid majority of the employees do endorse, some evidence about that. I will then deal with the matter based on that material, together with what I have heard today, and give you an answer at the earliest opportunity. I repeat that I will do that expeditiously. If I have any further concerns I will raise that with Mr Slater at the earliest opportunity.

ADJOURNED INDEFINITELY [10.30am]