AG2004/5075, Transcript of Proceedings [2004] AIRCTrans 2797 (20 July 2004)

AUSCRIPT PTY LTD
ABN 76 082 664 220

ADMINISTRATOR APPOINTED

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

TRANSCRIPT OF PROCEEDINGS


O/N 7793
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT WATSON

AG2004/5075, 5076, 5077, 5078,
5079, 5080, 5081, 5198, 5199,
5200, 5201, 5202, 5203, 5218,
5219, 5220, 5221, 5222, 5223,
5224, 5225, 5226, 5227, 5228,
5229, 5232, 5380, 5381

HAV MAFFRA HARDWARE AGREEMENT
2004

HAV ROCHE'S HARDWARE AGREEMENT
2004

HAV MATTERN'S HARDWARE AGREEMENT
2004

HAV PEPPERELLS HARDWARE AGREEMENT
2004

HAV DAVID O JONES MITRE 10 AGREEMENT
2004

HAV GLO-BRITE HARDWARE & PRODUCE
AGREEMENT 2004

HAV SWAN HILL HARDWARE PTY LTD
AGREEMENT 2004

HAV MURPHY'S MITRE 10 AGREEMENT 2004

HAV A W SMITH & SONS CERTIFIED
AGREEMENT 2004

HAV COLTMAN MITRE 10 SEBASTOPOL
AGREEMENT 2004

HAV COLTMAN MITRE 10 AGREEMENT
2004

HAV ALEXANDRA TRADERS PTY LTD
CERTIFIED AGREEMENT 2004

HAV MACBEANS (KYNETON) AGREEMENT
2004

HAV HOME AND HARDWARE TRARALGON
CERTIFIED AGREEMENT 2004

HAV LEONARD A WALKER PTY LTD
AGREEMENT 2004

HAV DRYSDALE VILLAGE HARDWARE
AGREEMENT 2004

HAV CORNWALL'S HARDWARE CERTIFIED
AGREEMENT 2004

HAV DEANS TRUE VALUE HARDWARE
CERTIFIED AGREEMENT 2004

HAV PREMIER HARDWARE CERTIFIED
AGREEMENT 2004

HAV RAES HARDWARE MITRE 10 AGREEMENT
2004

HAV NORTH RINGWOOD AGREEMENT 2004

HAV VIBERTS MITRE 10 AGREEMENT 2004

HAV TORQUAY MITRE 10 AGREEMENT 2004

HAV SIMMERS THRIFTY LINK HARDWARE
AGREEMENT 2004

HAV MOOROOPNA HARDWARE & TIMBER
AGREEMENT 2004

HAV DONCASTER MITRE 10 HARDWARE
CERTIFIED AGREEMENT 2004

HAV KILMORE MITRE 10 SOLUTIONS
AGREEMENT 2004

HAV JENKIN & THOMAS (HOLDINGS)
PTY LTD AGREEMENT 2004

Applications under section 170LS of the Act
by Shop, Distributive and Allied Employees
Association and Others for certification of
the above agreements

MELBOURNE

10.11 AM, FRIDAY, 9 JULY 2004

PN1

MS J. HEAGENY: I appear on behalf of the Shop Distributive and Allied Employees Association. Also appearing with me today is MR J. RAIMONDO, also from the SDA.

PN2

MS S. WHITE: I am seeking leave to appear on behalf of the Hardware Association of Victoria, various members.

PN3

THE SENIOR DEPUTY PRESIDENT: Now, can I just say there are matters I wish to be addressed on in terms of the provisions of the Award and I think they are being put to the parties. There are some other more mechanical matters some of which I think have been put to the parties, if not all, which I can be addressed on. Firstly, the SDA statutory declarations seem to be incomplete in that not all items are ticked and perhaps by reference to one of them, that could be addressed as to what the intent of the SDA was where some matters were left blank, presumably to replicate the statutory declarations of the employers in respect of those matters.

PN4

The employer statutory declarations will require the originals and identification and name and address of the deponents. All matters are out of time other than two so that issue will need to be addressed and in respect of one matter, North Ringwood 5225, another agreement was filed and appears in the file rather than North Ringwood Agreement, so who would like to lead off?

PN5

MS WHITE: I think that might fall to me this morning, your Honour.

PN6

THE SENIOR DEPUTY PRESIDENT: Ms White.

PN7

MS WHITE: I might leave the issue of the SDA statutory declarations to Ms Heageny to address. I have brought with me copies of the original signed statutory declaration and original signatory pages for most of these agreements, your Honour, and I am not quite sure how you would like me to proceed. There are two agreements that I have not been able to get the signed originals today but I will undertake to make available to you as soon as possible - - -

PN8

THE SENIOR DEPUTY PRESIDENT: Yes, very well.

PN9

MS WHITE: - - - that would be the Jenkins, HAV Jenkins Agreement number 5381 and also the Roche's Agreement which would be number 5076. I will undertake to get those to your associate as soon as possible and hopefully, by early next week, your Honour. If it suits, I might hand up all of the originals at this point, your Honour. The first one I might tender, your Honour, is the North Ringwood Hardware originals which were also the faulty agreements that were an administrative oversight.

PN10

I will tender a copy of the original signed statutory declaration, a copy of the original signed agreement by the member in that face and I have also provided three copies of a total agreement given the deficiency.

PN11

THE SENIOR DEPUTY PRESIDENT: Yes, very well.

PN12

MS WHITE: Yes, unfortunately, your Honour, it appears that they are still wrong. My trusty assistant back at the office has not quite got that one right but I will make those available this afternoon, your Honour, but I am sure I am right in respect of having a statutory declaration and the signed signatories page there for you.

PN13

THE SENIOR DEPUTY PRESIDENT: Yes, thank you for that. That will be simply placed on that file, should form part of the file.

PN14

MS WHITE: The next one I might take you to, your Honour, is the Rays Certified Agreement which is number - I think it is going to be number 5225 but that may depend on the number afforded to North Ringwood Hardware, given the administrative error.

PN15

THE SENIOR DEPUTY PRESIDENT: I see, yes. Just bear with us for a moment. Yes, 4 is Ray's, Ms White and 5, North Ringwood.

PN16

MS WHITE: Thank you, your Honour. Here is a copy of the signed original statutory declaration and signed signatory page on behalf of the Ray's Agreement being 5224. The next item on my particular list, your Honour, is the Gilmore Mitre 10 Agreement 5381 and again I have a copy of the original statutory declaration signed for you as well as the original signatory page to the agreement. Likewise, with Mattern's Agreement, this is number 5077, I have the two documents available for you. If it is more convenient, your Honour, I can hand them up as a group and then address it.

PN17

THE SENIOR DEPUTY PRESIDENT: Yes, perhaps that would be appropriate.

PN18

MS WHITE: All right.

PN19

THE SENIOR DEPUTY PRESIDENT: I will just allow you a minute to get organised. Should have brought your assistant. Each of the documents will be placed on the relevant file over the course of the next day or so.

PN20

MS WHITE: Will not be a moment, your Honour, bear with me.

PN21

THE SENIOR DEPUTY PRESIDENT: Yes. Thank you for that, Ms White.

PN22

MS WHITE: Okay, your Honour, hopefully in the order as they have been provided - these are original statutory declarations and signatory pages to the agreement for Home and Timber Hardware to Melbourne being agreement 5218, Drysdale Village Hardware being agreement 5220.

PN23

THE SENIOR DEPUTY PRESIDENT: Yes.

PN24

MS WHITE: Cornwall Hardware 5221 and Doncaster Mitre 10 Agreement 5232, Dean's True Value Hardware 5222, Premier Hardware 5223 - and I would like to just make an additional comment, your Honour, in respect of the statutory declaration for Premier Hardware. You will find when you get to that particular statutory declaration that there is in fact two signed statutory declarations there and I think I need to explain that. The particular member at Premier Hardware had inadvertently taken an incomplete copy to have witnessed.

PN25

THE SENIOR DEPUTY PRESIDENT: I see.

PN26

MS WHITE: We brought that to his attention and asked him to take it back down complete. Again, he took it incomplete, a different page this time, so we had two statutory declarations both incomplete together. We hope they satisfy the relevant requirements.

PN27

THE SENIOR DEPUTY PRESIDENT: Yes. Very well.

PN28

MS WHITE: Also tendered is Viberts Agreement 5226, Torquay Mitre 10, 5227, Simmer Thrifty Link Agreement 5228, Mooroopna Hardware and Timber Agreement 5229, MacBeans Hardware (Kyneton) Agreement 5203, Alexander Traders Agreement 5202, Coltman's Mitre 10 at Sebastopol 5200 and at Ballarat 5201, A.W. Smith and Sons 5199, Murphy's Mitre 10 5198, Swan Hill Hardware 5081, Globe Right Hardware 5080, David O Jones Mitre 10 Agreement 5079, Pepperells Hardware 5078 and Mattern's Agreement 5077 which really just leaves I think, those two that I have already undertaken your Honour to provide as soon as possible and in due course.

PN29

Your Honour has, through his associate, raised a number of issues with us and again drawn our attention to those this morning and I might commence with the out-of-time issue if that is convenient. Your Honour, as you have indicated these agreements are largely out of time with the exception of two. The extent of the duration of them being out of time varies - some for just a couple of days, others up to as long as probably about three weeks - and in terms of that, your Honour, I think as the relevant representative working for these members I need to substantially take responsibility for that.

PN30

It has been extremely difficult for us to co-ordinate working with these agreements with various members spread throughout the State of Victoria and for convenience we were sending out very similar correspondence to all of them. When it came to time of returning back the relevant documents and conducting the vote - they were conducted at different time intervals to give them an opportunity. That meant we received all of this documentation back over a period of about three weeks. Naturally that meant the earlier ones that came in are the ones that are more out of time.

PN31

Whilst I cannot provide you any documentary evidence about changes in the number of employees during this time, I am not aware that there has been any substantial change in any of these businesses that would impact in that regard and we would ask that you use your discretion under section 111(1)(r) of the Act to extend the statutory time period in these cases. It was somewhat of an unusual event. We don't make a habit of lodging out of time but, unfortunately in this instance, administratively led us down that path, so we would ask you to extend on that issue.

PN32

THE SENIOR DEPUTY PRESIDENT: Yes, thank you.

PN33

MS WHITE: Moving to the next issue here, the agreements have been lodged under 170LS Act your Honour. Most of these businesses have previously been found in dispute with the SDA and that arises from a dispute found by the Commission some time ago in the matter Foreshore Garden Supplies and others, C number 38456 of 1995. What the parties say here is in respect of those businesses which were found in dispute on that occasion, that these agreements are in further settlement of that dispute.

PN34

Five agreements we could not identify having previously been in dispute with the Commission. I am not sure we have exhausted all efforts to ascertain that absolutely they have never been found in dispute but we were not able to come, today, or to lodge these agreements on that basis so we have lodged those in respect of there being an industrial situation and I think Ms Heageny is going to say more about the SDAs views as to the particular nature of the industrial situation. For my part I will say that all of these businesses have been under certified agreements of the Commission which have passed their nominal expiry date.

PN35

They were still in existence now, division 2 agreements that were multi employer agreements. For various technical reasons the parties had decided that that was not possible or was likely to be very difficult to do on this occasion. For various other technical reasons it appeared that the other division 2 agreements were not available to us. That has meant that we have found ourselves in a difficult situation with the nominal expiry date of those agreements having passed, the parties wanting to genuinely make an agreement so we say that this gives rise to an industrial - depending on probable industrial dispute which gives rise to industrial situation and as I said I will allow Ms Heageny to further address that matter.

PN36

It is probably very specific to these particular circumstances. It is not something that we would generally say but it is very situation dependent. In terms of the other statutory requirements for these, I might address those as a group. Each of these agreements has met the requirement under 170LR of the Act and has been approved by a valid majority of employees who will be the subject of the agreements. In each of the cases the employers provided access to a copy of the agreement 14 days before any approval. They took steps to explain the terms and conditions of the proposed agreement and how that differed from the award to their employees in that time period and had a ballot conducted.

PN37

That ballot was scrutinised jointly between myself and Ms Heageny and all those agreements have passed on those bases. In respect of the period of the agreement, it is a period that is less than three years and the nominal expiry date in each of these agreements is named as 1 December 2006 which I guess leaves the other issues which your Honour has raised predominantly in respect of the no disadvantage test. There is one issue that I will address and that is something that your associate brought to my attention in the body of the agreements and that is there appears to be no clause 5. The agreements go to clause 4 and then into clause 6. I have taken a look at this and we don't believe anything is missing per se.

PN38

THE SENIOR DEPUTY PRESIDENT: Yes.

PN39

MS WHITE: The three former certified agreements apparently also suffered from this missing clause and I think that has just been translated over into these agreements but we do not see anything that has actually occurred that would impact in any way. In respect of your Honour's question on the redundancy test case provisions, your Honour, at the time the agreement was reached between the parties that decision had not been handed down.

PN40

I do not believe there has been an application made, or certainly not one heard in respect of the Hardware Award for those provisions. It is not the intention of the parties, and again I will allow Ms Heageny to address that from the SDAs perspective but it is not the intention of the parties at this stage to include those provisions. I guess, on the next round of agreement-making they would be naturally included if the award is varied on that basis.

PN41

THE SENIOR DEPUTY PRESIDENT: I suppose certification and no disadvantage test is a kind of certification. I suppose most employers appear to fall within the fewer than 15 scale in any case which is not materially different from what is in the agreement.

PN42

MS WHITE: Yes. That would seem to be the case. There are probably a few that have more than 15. If it is some sort of difficulty, I think we are prepared to - in terms of certification, I think we are prepared to look at that issue further but certainly at the time the agreement was made it was not contemplated.

PN43

THE SENIOR DEPUTY PRESIDENT: Yes, very well.

PN44

MS WHITE: The savings provision, your Honour, has asked for an explanation of the words in the savings provision.

PN45

THE SENIOR DEPUTY PRESIDENT: Yes.

PN46

MS WHITE: I might take you to that. That is clause 8 of the proposed agreement. Your Honour, the three prior division 2 agreements to which I have previously made reference, all contain savings provisions.

PN47

THE SENIOR DEPUTY PRESIDENT: Yes.

PN48

MS WHITE: Those being the first agreements that these employers and the SDA had entered into. The wording however of those division 2 agreements really was consistent with the agreement being the first agreement. When we have come to negotiate roll-over of second agreements, the wording needed to be adjusted to account, I guess for the fact that the savings provisions apply in respect of existing employees prior to those earlier division 2 agreements. That means we have been a little bit wordy in trying to make sure that that did not lead to any ambiguity about employees being employed prior to the certification of these particular agreements.

PN49

There has been no intention to change any of the savings provisions that applied apart from taking account of that circumstance and in addition providing a small increase on those employees that have saved rates. It is not our understanding that there are many, if any employees who have saved rates so we do not believe that it is a really significant issue. Unless you have any particular questions about the savings provisions - - -

PN50

THE SENIOR DEPUTY PRESIDENT: No, no, that is fine.

PN51

MS WHITE: Okay. Your Honour has also asked us to address some particular matters, one being the incidence of work outside the award spread of hours for these employers and I might take the opportunity to hand up a document that sets out the trading hours of the particular business at this juncture and speak to that if that is - - -

PN52

THE SENIOR DEPUTY PRESIDENT: Yes. I mark that document exhibit ARAV1, thank you.

EXHIBIT #ARAV1 DOCUMENT SETTING OUT TRADING HOURS

PN53

MS WHITE: Your Honour, with the exception of the Roche's Agreement and the Jenkins Agreement, this document sets out - and North Ringwood Hardware which I have not been able to contact to ascertain his information but for all the other agreements, this document sets out trading hours as they stand. It also addresses the issue as put to these members whether they intend to trade or expand their trading hours in the next three years, and it also then looks at the issue of: are there any of these employers currently trading outside what would be the award spread of hours.

PN54

Almost universally, we can say that - I think we can say absolutely universally in all cases, none of these employers actually trade outside the awards spread of hours and whilst the agreement is spread - is slightly expanded on the award, none of these employers will be rostering ordinary hours in those time periods as their trading hours currently indicate. In terms of foreseen expansion, I believe only three have indicated that there may be some consideration of expansion. They are Alexander Traders, MacBeans of Kyneton and also Premier Hardware and a fourth, Viberts Mitre 10.

PN55

In all four of those cases they are employers who have a fairly limited trading span already and the expected expansion if any were to take place would again be within the award spread of hours. MacBeans, for example, only trade until 12.30 pm on Saturday and 1 pm on Sunday, Alexander Traders, 1 pm, on Saturday, and 1 pm on Sunday, Viberts 1 pm Saturday and 1 pm Sunday and Premier Hardware 4 pm on Saturday and 4 pm on Sunday. We didn't have any indication that there would be any drastic - that would affect the no disadvantage test for that purpose, your Honour.

PN56

This document also addresses one other issue raised by his Honour through your associate which was the incidence or use of these employers of the 95 per cent rate or the HIW1 classification rate and in the last column on this document on 10 of 2, set out what these employers have said to us in the last week when we have asked them that question. Almost half have said that during the life of the agreements that they are currently under that they are getting used to classification. The other half approximately have indicated there has been some very limited use during the life, many of them have said just on one occasion and they have also indicated that there would be very sparing use of it in the future.

PN57

This information has come through my industrial offices ringing these members and that is what has verbally been communicated to us. Can I say more generally however that there are probably some unusual features of these group of employers as hardware employers, independent hardware employers that does somewhat differ from retail in general and those features have become apparent to both myself and the SDA as we have been negotiating these agreements.

PN58

One of those features is the experience that they like to have in employees through product knowledge and that leads itself to not being overly inclined to hire many casual employees and to not hire people who do not come to them, unless they have a great deal of experience which of course works against them putting people under the 95 per cent rate. They don't trade as expansively as many other retail sectors do and as their competitor, Bunnings, does as you will see from that trading information.

PN59

So there are some very unique features of these. Overall I would say in respect of the HIW1 classification, whilst it was something that was negotiated into those former agreements that they are currently under, it does seem to be fairly sparing use of it and I know Mr Raimondo has prepared some detailed charts for you on comparison of rates which I will allow Ms Heageny to address. At this stage, your Honour, I think the remainder of your concerns are to be addressed by Ms Heageny. We would ask that you - - -

PN60

THE SENIOR DEPUTY PRESIDENT: I am not concerned so much as the need for further information.

PN61

MS WHITE: I understand, your Honour.

PN62

THE SENIOR DEPUTY PRESIDENT: Yes. There is one other issue I would want to raise.

PN63

MS WHITE: Yes.

PN64

THE SENIOR DEPUTY PRESIDENT: Could I take you to clause 42: Union recognition and membership. As I understand it, clause 42.1 reflects the position of the - sorry, the view of the employer as to appropriate union representation and then a series of measures to assist. I take it that that clause does not have the effect and is not intended to oblige any of the employers to do anything to give effect to their view as to appropriate representation?

PN65

MS WHITE: No, they don't believe it does, your Honour.

PN66

THE SENIOR DEPUTY PRESIDENT: Yes, thank you.

PN67

MS WHITE: My understanding is that this is not an offensive sort of provision of the sort but some cases are recognised so - no, I don't believe it does that, your Honour.

PN68

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

PN69

MS WHITE: If there is nothing further.

PN70

THE SENIOR DEPUTY PRESIDENT: Thank you. Yes, Ms Heageny.

PN71

MS HEAGENY: I might just start with the stat decs first, your Honour. I just had a look through them and have noticed that, for some reason, my ticks on my computer don't seem to have lodged on most of them. So I am happy to actually go through and re-lodge them all with the appropriate ticks or go through one with you now.

PN72

THE SENIOR DEPUTY PRESIDENT: No, perhaps, if you take the latter course.

PN73

MS HEAGENY: Okay. Thank you. Well, your Honour, in particular, in reference to 1.4, of the statutory declaration, we would answer this question:

PN74

If the agreement applies to part of a single business, as defined?

PN75

We would tick that box as, yes. I believe at the moment that box is empty.

PN76

THE SENIOR DEPUTY PRESIDENT: See, the ticks have moved across from the box to the body, have they? Is that the - - -

PN77

MS HEAGENY: Maybe it has.

PN78

THE SENIOR DEPUTY PRESIDENT: Sorry, I'm looking at the wrong one. I am looking at the employer's. Yes, there is no indication at all. What appears to have happened is the tick hasn't appeared but attempts to put the tick in have had the affect of moving the line across.

PN79

MS HEAGENY: Yes. So in 1.4, we would tick the "yes" box, in that clause.

PN80

THE SENIOR DEPUTY PRESIDENT: Yes.

PN81

MS HEAGENY: Also, in 2.1, we would tick the top box:

PN82

The agreement is made in settlement, further settlement or maintenance of settlement or the prevention of industrial dispute.

PN83

Where we have listed there, the C number, as appropriate, for the dispute.

PN84

THE SENIOR DEPUTY PRESIDENT: Yes.

PN85

MS HEAGENY: Also, turning over the page, to 5.1, we would tick the box that:

PN86

The agreement was genuinely approved by a valid majority of employees?

PN87

THE SENIOR DEPUTY PRESIDENT: Mm.

PN88

MS HEAGENY: Then over to 6.3:

PN89

Certification would not result in a reduction in overall terms and conditions of employment?

PN90

We would tick that box also. Then also further on to 6.6.1 - sorry, 6.6.2:

PN91

Does the clause specified empower the Commission to settle disputes over the application of the agreement?

PN92

We would tick "yes", that it does.

PN93

THE SENIOR DEPUTY PRESIDENT: Mm.

PN94

MS HEAGENY: And I believe that covers most of the empty boxes, your Honour.

PN95

THE SENIOR DEPUTY PRESIDENT: Yes, and that is the position in respect of each of the agreements?

PN96

MS HEAGENY: Yes, thank you, your Honour.

PN97

THE SENIOR DEPUTY PRESIDENT: Yes, thank you.

PN98

MS HEAGENY: My apologies for that. In relation to the out of time application, your Honour, we support the submissions of Ms White, regarding this application. Our apologies. Administratively, this has been quite difficult to manage, in terms of the volume of work and also, from our end, we did have problems getting the appropriate officials to sign the agreements when they finally did come in, so things were further delayed there. So we would seek that the Commission exercise its discretion in that regards. On the issue of the five employers not covered by the dispute finding, on the issue of an industrial situation, they currently - from all our searching, we don't believe they are covered by a dispute finding.

PN99

It would be our intention that they are covered by a dispute and bound by the hardware award as opposed to leaving any employer award-free and our employees award-free. By having this agreement we then resolve this industrial situation to our satisfaction. If there is no agreement, we would have them roped into the hardware award. So it is on that basis that those five employers - we believe, we are settling an industrial situation.

PN100

THE SENIOR DEPUTY PRESIDENT: Yes, very well.

PN101

MS HEAGENY: On the issue of the 95 per cent rate. If I can take you also, to Ms White's document, provided - - -

PN102

THE SENIOR DEPUTY PRESIDENT: Sorry, can I just take you back? Does that mean in relation to the five - do you have the identity of the five?

PN103

MS HEAGENY: Yes, we do.

PN104

MS WHITE: I might be able to assist there? Your Honour, the five are, Doncaster Mitre 10, David O. Jones Hardware.

PN105

THE SENIOR DEPUTY PRESIDENT: I'm sorry, which Jones?

PN106

MS WHITE: David O Jones Hardware, Leonard A. Walker.

PN107

THE SENIOR DEPUTY PRESIDENT: Sorry? Leonard A. Walker?

PN108

MS WHITE: Leonard A. Walker. And the two W.F. Coltman, Mitre 10 at Sebastopol and Ballarat - and I might further add something I didn't previously say, is that these are all Pty Limited companies, if that is something that you were going to ask us?

PN109

THE SENIOR DEPUTY PRESIDENT: That is Coltman. Thank you for that. And these employers are not bound by the relevant award?

PN110

MS HEAGENY: No. No, they are currently award-free, as such. They are not bound by the Victorian Shops, either, so this would be - the hardware award would be the appropriate award for them to be bound by. So for some reason, they have slipped through.

PN111

THE SENIOR DEPUTY PRESIDENT: So in respect to each of those matters, you are seeking designation of the hardware award as the relevant award?

PN112

MS HEAGENY: Yes, we are, sorry, your Honour.

PN113

THE SENIOR DEPUTY PRESIDENT: Yes, very well. Ms White, that is a proposition those companies agree with, that that is the appropriate award for designation?

PN114

MS WHITE: Yes, they have that view, your Honour.

PN115

THE SENIOR DEPUTY PRESIDENT: Very well. Well, perhaps at the outset I should, pursuant to section 170XF of the Act, designate the Shop Distributive and Allied Employees Association Hardware Retail Industry Award 1999, AW798407, as the appropriate designated award for the purpose of no disadvantage test in respect to AG2004/5078, AG2004/5201, AG2004/5200, AG2004/5219, that is, Doncaster, and AG2004/5232. Yes, go on, Ms Heageny?

PN116

MS HEAGENY: Thank you, your Honour. On the issue of the 95 per cent rate, I have a document that we have prepared that just does some wage comparisons, which I would like to tender.

EXHIBIT #SDA1 WAGE COMPARISONS

PN117

MS HEAGENY: Thank you, your Honour. Just drawing your attention to page 1, compares the permanent Retail Worker, Grade 1, which is the 100 per cent rate under the award, as against the Retail Worker, in the agreement, which is the 95 per cent rate. In the yellow column listed we have the cents, or the increase over the award, that the agreement provides and you will see further down the column in red, marked, where there is a deficiency from the agreement versus the award.

PN118

If I can just take you quickly to page 2? Page 2, offers a casual perspective on that same analysis, Retail Worker, Grade 1, at 100 per cent versus the agreement rate of 95 per cent. My apologies, there are some handwritten changes to those calculations there because we made a mistake regarding the annual leave loading component of the casual rate. If you look in comparison with this document and exhibit ARAV1, and in particular the trade hours that are worked. No store trades after 6 pm, Monday to Friday. A lot of them trade Saturdays and Sundays at various times, some finishing around lunchtime, midday, others at four, some at three, so there is a variance there, in comparisons of times worked.

PN119

THE SENIOR DEPUTY PRESIDENT: That is reflected in Ms White's document.

PN120

MS HEAGENY: Yes, in the ARAV1, and also as regards, in particular, to the 95 per cent rate as Ms White has already indicated. The 95 per cent rate is not widely used at all, as it is in other sectors of retail. Half have never used it and some have on one occasion and in particular, it appears to be a genuine training option, where people are not up to the proper skills and particularly, hardware, where there is considerable skill in product knowledge and an in-depth level of customer service. Hardware is unique in terms of that work and the skills that are required.

PN121

As Ms White has already submitted they do employ older people generally and one of the anecdotal cases, where they have employed a 95 per cent person, which is someone who is long term unemployed and had very little work skill whatsoever, and that person went on the three month training program. So we would submit that the majority of the time those people are better off under the agreement than they are under the award, in particular when you compare that with trade hours and it is not a greatly used provision, so it is not an abusive system that employees may suffer detriment under.

PN122

THE SENIOR DEPUTY PRESIDENT: So bar for the very odd exception the agreement, Retail Worker 1 classification, wouldn't have application.

PN123

MS HEAGENY: You are right, your Honour, that is correct.

PN124

THE SENIOR DEPUTY PRESIDENT: So the Retail Worker 2 classification under the agreement, that is most properly compared to which award classification?

PN125

MS HEAGENY: Retail Worker, Grade 1 under the award. So the Retail Worker 2 under the agreement is the 100 per cent rate and under the award is the Retail Worker Grade 1. I also have a wage sheet if you would like me to tender that as well, your Honour.

EXHIBIT #SDA2 WAGE SHEET

PN126

MS HEAGENY: This wage comparison does the 100 per cent rate to the 100 per cent rate, under the agreement and the award. Also then compares the casual rate also with the agreement rate, just bearing in mind I have looked through a lot of the stat decs. I think at least half of the employers employ no casuals at all and some employ some on a limited basis but again it is not your typical retail situation, there's a lot of casual employees. Also there we have listed the public holiday rate which under the agreement and the award is both 250 per cent and then also a comparison of the public holiday rates for casuals. We also have there the Saturday rates and the Sunday rates.

PN127

There is some detriment suffered on a Sunday where the time is 100 per cent versus 50 per cent loading for the all employees on those days. Again, anecdotally, we have had some feedback from the Hardware Association and some of the employers but most have very limited staff on a Sunday. Most people work the bulk of their hours Monday to Friday and management often are doing the hours on a Sunday, in particular. Is there anything further you would like me to explain with regards to wages, your Honour.

PN128

THE SENIOR DEPUTY PRESIDENT: No, I think that is fine. Thank you for that.

PN129

MS WHITE: Thank you. Just on the issue of TCR, unfortunately it would have been our preference to have the new TCR provisions inserted but the test case was not finalised and there was actually no decision when we were actually negotiating so unfortunately we missed the round but I'm sure it will be in there next time to make sure that is compatible. As regards to clause 42, I would just like to give our undertaking that we do not believe that is offensive to the freedom of association provisions and we would seek to have the agreement certified effective from today's date. Unless there are any further questions.

PN130

THE SENIOR DEPUTY PRESIDENT: Yes, very well and I thank you for that. Yes, very well. Appearing this morning there were 28 applications - - -

PN131

MS HEAGENY: Twenty-seven, I think.

PN132

THE SENIOR DEPUTY PRESIDENT: Twenty-seven applications for making - for the certification of agreements entered into between the Shop Distributive and Allied Employees Association and various named employers operative of retail hardware establishments, members of and represented by the ARAV. In respect of all matters other than AG2004/5202 and 5224, the applications have been lodged out of time by varying periods ranging from two days to three weeks and the parties have sought that the Commission exercise its discretion under section 111(1)(r) of the Act to extend the period for lodgment in those cases.

PN133

The delays are attributable to administrative issues associated with the co-ordination by both the ARAV and SDA of the agreements in the context of a wide geographic spread of relevant employers and employees across the state of Victoria and the undertaking of votes to obtain a valid majority of different times. The applications have been lodged together and plainly, administratively, the last cabs off the rank have affected timing of lodgment of the earlier matters. It appears that there is no change in the composition of the work force since the time of valid majority having been obtained which would affect that valid majority.

PN134

In those circumstances I will exercise a discretion under section 111(1)(r) of the Act to extend the period for lodgment in relation to each of those matters until 17 June 2004. The agreements are premised upon either industrial dispute in the form of C number 38456 of '95 or in the cases of AG2004/5079, 5200, 5201, 5219, 5232, industrial situations and I am satisfied the appropriate jurisdiction exists for the making of agreements in part settlement of that dispute where relevant or the industrial situation where relevant. I am satisfied that the agreements have been entered into in a manner consistent with the requirements of section 170LK of the Act and I am satisfied also that the requirements of section 170LT have been met in respect to each of the agreements.

PN135

In respect to section 170LT(2) of the Act I am satisfied, having regard to evidence provided as to the extent of casual employment, the trading patterns of employers bound by the agreement and the exceptionally limited past or intended future utilisation of a HIW1 classification under the agreement that certification of the agreement will not have the effect of disadvantaging employees under the agreement. In that regard I rely on material provided in exhibits ARAV1 and SDA1 and 2 in reaching that conclusion. I am satisfied also that nothing arises from section 170LU of the Act which would prevent certification of the agreements.

PN136

Accordingly I will certify each of the agreements. In each case the agreements have come into force from today's date, 9 July 2004, and the agreements will each remain in force until 1 December 2006. I will now adjourn these proceedings.

ADJOURNED INDEFINITELY [11.00am]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #ARAV1 DOCUMENT SETTING OUT TRADING HOURS PN53
EXHIBIT #SDA1 WAGE COMPARISONS PN117
EXHIBIT #SDA2 WAGE SHEET PN126