AG2004/5230, Transcript of Proceedings [2004] AIRCTrans 2739 (16 July 2004)

AUSCRIPT PTY LTD
(Administrator Appointed)
ABN 76 082 664 220

Level 4, 179 Queen St MELBOURNE Vic 3000
(GPO Box 1114 MELBOURNE Vic 3001)
Tel:[phone] Fax:[phone]

TRANSCRIPT OF PROCEEDINGS


O/N 7736

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT WATSON

AG2004/5230
AG2004/5231

KMART AUSTRALIA LTD AGREEMENT 2004

KMART AUSTRALIA LTD GARDEN SUPERCENTRE
AGREEMENT 2004

Applications under section 170LJ of the Act
by Kmart Australia Ltd t/as Kmart Garden
Supercentre and Another for certification
of the above agreements

MELBOURNE

10.29 AM, WEDNESDAY, 7 JULY 2004

PN1

MS D. NEZIS: I appear for Kmart Australia.

PN2

MR J. RAIMONDO: I appear on behalf of the Shop Distributive and Allied Employees Association.

PN3

THE SENIOR DEPUTY PRESIDENT: Yes, very well. Who would like lead? Ms Nezis.

PN4

MS NEZIS: Your Honour, this is an application under section 170LJ of the Act. You will recall that the parties did meet with you during the negotiations to seek some guidance regarding what we termed as flexibility provision. This provision has been agreed to between the parties; it is clause 42 of the Kmart agreement and clause 41 of the Kmart Garden Agreement. I will take you to the - they are identical in both the agreements. I will take you to the one in the Kmart Australia agreement. It is on page 68 of the agreement. This clause is limited to specific clauses in the agreement, namely clause 13 roster conditions, clause 14 overtime, clause 15 meal breaks and tea breaks, and clause 16 public holiday. The parties have committed to have ongoing discussions regarding these clauses during the life of the agreement.

PN5

As a result of the discussions the parties can agree to trial rosters which are at variance with the agreement with respect to these specific clauses. Now if the parties agree to vary these specific clauses in any way, the rosters that are agreed may be implemented provided that, firstly, the changes must be voluntary for each employee, the employee can elect to return to the provisions under the agreement by giving two weeks notice, and following that any such roster would satisfy the no disadvantage test under the agreement. And on that basis the parties would make an application to the Commission under section 170LW of the Act for the Commission to be satisfied that the no disadvantage test is being met. Now by way of clarification we would also like to say that this clause does not apply to changes that can otherwise be made under the agreement.

PN6

THE SENIOR DEPUTY PRESIDENT: Yes, very well.

PN7

MS NEZIS: Does that satisfy the Commission? Is there any other - - -

PN8

THE SENIOR DEPUTY PRESIDENT: Yes. I think it ensures that there is no change which would be made which wouldn't satisfy the Commission as to the no disadvantage test continuing to be met; so that would seem appropriate.

PN9

MS NEZIS: Now, with respect to application under the agreement, you have before you statutory declarations in support of the application to certify both the Kmart Australia Agreement and the Kmart Garden Agreement. The company submits that in accordance with the requirements of the Act the agreement passes the no disadvantage test. The statutory declarations provide comparison of the relevant award and the Kmart Australia Agreement and the relevant award in the Kmart Australia Garden Supercentre Agreement.

PN10

Now, further to this, the company has highlighted some - a comparison between the rates of pay under the awards and the rates of pay under the agreements - of the award and the agreements to show that the agreement does, in fact, meet the no disadvantage test with respect to rates of pay. I can provide to the Commission a comparison of some typical rosters that we have put together.

PN11

THE SENIOR DEPUTY PRESIDENT: Yes, thank you for that, Ms Nezis.

PN12

MS NEZIS: There is one for the Kmart EBA and one for the - - -

PN13

THE SENIOR DEPUTY PRESIDENT: I will mark the comparisons exhibit KM1 in each case and they will go under the relevant file.

EXHIBIT #KM1 COMPARISON OF TYPICAL ROSTERS

PN14

MS NEZIS: I am happy to take you through these, your Honour. The first page, you will see, basically shows, in the first sort of group of columns under where it says "Kmart Agreement 2004" it shows the rates of pay for the adult, going down to each of the junior rates, on a weekly basis, an hourly basis and a casual basis. The next sort of set of columns look at the Kmart Consent Award, and the next set of columns shows the difference between the consent award and the Kmart agreement.

PN15

You will notice that all of the rates of pay are higher under the agreements than what they are under the award. I then - what we did is requested from stores some typical rosters, and we collated the ones that we felt were the most typical ones. I provided to the Commission a - two part time examples, two full time examples and two casual examples. What I might do is, I will take you through the first one and I am happy to keep going - - -

PN16

THE SENIOR DEPUTY PRESIDENT: Yes. Perhaps if you take me through the first one and then I can understand what has been done, and then the results presumably will speak for themselves.

PN17

MS NEZIS: The column - the far left column shows the different provisions under the agreement with respect to hours and then the column next to that shows the penalty rate that applies during each of those hours under, firstly, the award and then the EBA. Now what we have done is simply plug in the typical rosters, so, for example, part time employee number 1, Monday to Friday they worked 28 hours during the period from 6am till 10pm. And that would be typically what our part timers do. They work most of their hours during that ordinary period of Monday to Friday. We then have - they did do - they did do four hourlies during the ordinary hours on Saturday, which is 6am till 6pm.

PN18

The column on the right hand side shows the comparison of the amount - the take home amount under the award, and the take home amount under the EBA. And then down the bottom it shows the difference - if they have worked under the EBA or if they had worked under the award. And you will notice with each of the examples, your Honour, that the employee is better off.

PN19

THE SENIOR DEPUTY PRESIDENT: Yes, thank you for that.

PN20

MS NEZIS: With respect to our statutory declarations you will notice that, consistent with section 170LT(5) of the Act, a majority of people employed at the time whose employment would be subject to the agreement, have genuinely approved the agreement. The agreement contains a dispute settling procedure under the Kmart award - agreement, sorry, it is at clause 33 of the agreement under the Kmart Garden Supercentre Agreement it is at clause 32. The agreement has a nominal - the agreements have a nominal expiry date of 30 April 2006, and that is not more than three years after the date on which the agreement comes into operation, which is - will apply from, which is 1 May 2004.

PN21

Your Honour, we submit that the agreements satisfy the requirements of the Act and request that the Commission certify the agreements. I am happy to answer any further questions that you may have. If the Commission pleases.

PN22

THE SENIOR DEPUTY PRESIDENT: Yes, thank you Ms Nezis. Mr Raimondo.

PN23

MR RAIMONDO: Thank you, your Honour. Your Honour, the SDA supports the submissions put forward by Ms Nezis from Coles Myer, today. In particular, I'd also like to give an undertaking on transcript that we will abide by the process with regards to the flexibility clauses within both of those agreements. We also, your Honour, rely on our statutory declarations signed by Ian Blandthorn, the Assistant Secretary of the SDA. And if there are any further questions, your Honour, I am more than happy to answer those. Thank you.

PN24

THE SENIOR DEPUTY PRESIDENT: All right. Thank you, Ms Nezis, for providing that additional information. It does provide some context to the reductions and improvements. Yes, these are applications, two applications pursuant to section 170LJ of the Workplace Relations Act 1996 for the certification of the Kmart Australia Limited Agreement 2004 and the Kmart Australia Limited Garden Supercentre Agreement 2004. Having regard to the statutory declarations and the submissions put today and the additional materials provided today, I am satisfied that each of the requirements of the Act and rules of the Commission has been met.

PN25

Specifically I am satisfied that the matters dealt with in the agreement fall within the scope of the requisite relationship within section 170LI of the Act. Secondly, I am satisfied that the requirements of section 170LT of the Act have been met. In relation to section 170LT(2) I note that each agreement contains a flexibility agreement which permits deviation from the agreement following trial, and by agreement, which potentially raises the possibility of there being an open-ended deviation from the agreement which would affect the no disadvantage test.

PN26

However, the provision agreed between the parties contains a mechanism by which the Commission would be satisfied that any change arising from the flexibility provision would not have the effect of disadvantaging employees overall, in terms of the agreement however altered by the flexibility provision. In those circumstances the flexibility provision raises no impediment to satisfaction of the no disadvantage test or certification of the agreement. Also in respect to section 170LT I note from the statutory declarations a limited number of reductions in terms and conditions in the award arising from the agreement but, equally, a more substantial number of benefits arising from the agreement.

PN27

The Commission, in order to be satisfied that there is no overall disadvantage requested that the parties provide some further information indicating the practical effect of major variations from the award, both beneficial and detrimental, in particular in respect to wage rates and penalty payments. Kmart has produced such material in the form of exhibit KM1, which satisfies me that the practical effect of the agreement overall would not be to disadvantage employees and, accordingly, I am satisfied that certification of each agreement would not in either case create a situation which would disadvantage employees.

PN28

Finally, I am satisfied that nothing arises from section 170LU of the Act which would prevent certification of the agreements. Accordingly, I will certify each agreement. The agreements will come into force from today's date, 7 July 2004, and in each case will remain in force till 30 April 2006. I will now adjourn these proceedings. A copy of certificate will be available for the parties. As I have indicated, the further information provided by Kmart will be contained in each file as exhibit KM1. I will now adjourn these proceedings.

ADJOURNED INDEFINITELY [10.42am]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #KM1 COMPARISON OF TYPICAL ROSTERS PN14