AG2004/5291, Transcript of Proceedings [2004] AIRCTrans 2854 (23 July 2004)

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TRANSCRIPT OF PROCEEDINGS

O/N 1963

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

DEPUTY PRESIDENT HAMPTON

AG2004/5291

APPLICATION FOR CERTIFICATION
OF AGREEMENT

Application under section 170LJ of the Act
by Woolworths Limited and Another for certification
of the Woolworths Croydon Distribution Centre
Certified Agreement 2004

ADELAIDE

2.15 PM, WEDNESDAY, 14 JULY 2004

PN1

MS F. SIEDEL: I seek leave to appear as agent on behalf of Woolworths and appearing with me is MR H. VENNER.

PN2

MR D. TRENOUTH: I appear on behalf of the National Union of Workers.

PN3

THE DEPUTY PRESIDENT: Thank you, Mr Trenouth. I take it there is no objection to Ms Siedel's appearance?

PN4

MR TRENOUTH: No, Deputy President.

PN5

THE DEPUTY PRESIDENT: All right. Well, to the extent to which it is necessary, leave is granted. Yes, Ms Siedel.

PN6

MS SIEDEL: If the Commission pleases, this is an application under section 170LJ of the Workplace Relations Act for certification of agreement at the Woolworths Croydon Distribution Centre in South Australia. Employees are represented by the National Union of Workers, South Australian Branch. Genuine informed consent was given by a majority of employees after a full explanation of the terms of the agreement, and in the majority of respects the terms of the agreement are similar to the terms of a previous agreement.

PN7

We submit that the agreement complies with all the requirements for ratification contained within the Workplace Relations Act and the parent award is the General Store Workers Packers Wholesaler Sellers and Distributors Award. No other awards apply. The agreement is intended to run until 6 January 2006. I do not propose to go through the agreement in significant detail but would like to detail the main changes.

PN8

THE DEPUTY PRESIDENT: Very well.

PN9

MS SIEDEL: Firstly, clause 12.2 states the minimum and maximum hours of - number of ordinary hours per week for existing and new part-time employees. There is a typographical error in the wage rates table for trainees in clause 14.7. The effective dates for wage increases should read: 7 January 2004, and 7 January 2005. All references in clause 19 to paragraph 20.2.1 should be referred to as paragraph 19.2.1 and reference to paragraph 20.6 should read 19.6. Clause 19.6 outlines changes to severance payments which will be paid dependent upon the length of service and also clause 19.9 states that if an employee is not eligible for severance payments - sorry, states an employee is not eligible for severance payments if the company obtains adequate alternate employment for them.

PN10

And just finally, there is another typographical error in clause 33.5.2. Reference to clause 33.4.1 within the subclause should read 33.5.1. We commend this agreement for ratification by the Commission and if the Commission has no further questions I will leave my submissions there.

PN11

THE DEPUTY PRESIDENT: Ms Siedel, do you have replacement pages for those editorial amendments?

PN12

MS SIEDEL: No, I don't, I'm sorry.

PN13

THE DEPUTY PRESIDENT: I take it they could be supplied?

PN14

MS SIEDEL: Yes.

PN15

THE DEPUTY PRESIDENT: Ms Siedel, there is one matter that I should raise, only that these matters come up from time to time and I suspect this was a provision in the former agreement or the present agreement: the labour hire employees clause at clause 13. There would be some members of the Commission that may need to be persuaded that that clause pertains to the necessary relationship under the Act. I raise that and if you and/or the NUW wish to make any submissions about that, then I would invite you to do so.

PN16

MS SIEDEL: Okay. I will just take some instructions from my client.

PN17

THE DEPUTY PRESIDENT: Certainly.

PN18

MS SIEDEL: Deputy President, in regards to the question that you are asking for labour hire employees, we submit that it is an obligation of Woolworths and not on the labour hire company in regards to the employment relationship.

PN19

THE DEPUTY PRESIDENT: Thank you. Now, Mr Trenouth.

PN20

MR TRENOUTH: Thank you, Deputy President. On behalf of the National Union of Workers I would like to support the application made this afternoon in relation to the application. As you are probably aware, we have had a number of agreements over the years between Woolworths and ourselves that has led to a very good relationship between the parties that has done well for the membership and the ongoing employment of people here in South Australia.

PN21

Just in relation to clause 13, the labour hire casual one, it is not meant to be a clause that infringes on any relationship between Woolworths and any labour hire company. It is obviously the choice of Woolworths who they deal with in terms of what companies they may employ. It is just an arrangement between Woolworths and ourselves that we obviously would have the right to try and recruit workers within the company and also to make sure they are on the same rates of pay as employees as not to disadvantage employees, our members, where in some cases some companies, and certainly not Woolworths, but some companies may wish to undermine the wages of our permanent employees as opposed to casuals.

PN22

So I hope that explains the situation. We are certainly not trying to infringe on any relationship between the company and any labour hire organisation on that basis. So we would support the application and seek your approval, thank you.

PN23

THE DEPUTY PRESIDENT: Yes, Mr Trenouth. I should have raised this with Ms Siedel as well. I do note that there was a very long lead time - this is not a criticism by the way, only an observation - a very long lead time between making available the proposed agreement and the vote, 14 weeks, is there a particular explanation for that?

PN24

MR TRENOUTH: I, perhaps not being involved in the negotiations, I might be able to ask my friend from the company might be able to explain that. I was just mentioning before when I was checking the stat dec before it was sent in, I noticed 14 weeks and I thought that is a funny typo but it wasn't a typo at all. But there was some very contracted negotiations for it but I'm probably not the best person to ask, if that is all right.

PN25

THE DEPUTY PRESIDENT: Very well, I understand, thank you. Ms Siedel, yes.

PN26

MS SIEDEL: I will ask Mr Venner to explain that, if you like.

PN27

THE DEPUTY PRESIDENT: Yes, Mr Venner.

PN28

MR VENNER: Yes. What happened was, it is a small workforce and so we had a fluctuation in volume shortly after the first vote which led some of the guys to believe that perhaps some of the offsets the company was seeking might have impacted negatively on their hours. What we did was we instigated a number of operational incentives to try and get extra volume through the DC to show the guys that it is not the agreement that has actually impacted on the amount of hours, it is the volume. So we took some lines from Dry Creek, brought them into Croydon and tried to boost the hours and also looked at different shift patterns to try and see if we could even out the hours spread.

PN29

What happened there was part-timers were, instead of having a 20-hour guaranteed number of hours per week, they were looking at 28 to try and seek some kind of assurances. We said: well, let's rather treat it operationally as opposed to through an EBA, and to let some time lapse to show them a sense of good faith and goodwill and eventually we got the agreement through.

PN30

THE DEPUTY PRESIDENT: So they kind of trialled the agreement or demonstrated what it would mean in practice?

PN31

MR VENNER: Yes, it was a bit of a test run.

PN32

THE DEPUTY PRESIDENT: Then effectively put it to the vote?

PN33

MR VENNER: Yes.

PN34

THE DEPUTY PRESIDENT: All right. I understand, thank you. Anything further?

PN35

MS SIEDEL: No, Deputy President.

PN36

THE DEPUTY PRESIDENT: I will deal with the application now. I do so having read the statutory declarations and proposed agreement prior to the proceedings. I have had a number of matters clarified for me, including the negotiation, or more precisely the voting process and time frame and secondly, received some submissions in relation to one aspect of the agreement. Having considered all of that, I am satisfied that the agreement can and should be certified under the Act. In reaching that conclusion I have formed the view that the valid majority, in fact probably all of the employees, have given the consent necessary - the genuine consent necessary under the Act following a process which met the statutory obligations. In terms of the agreement itself, there are two elements to deal with.

PN37

Firstly, what one might call a jurisdictional issue and in particular whether the agreement can be certified, given that it contains clause 13 labour hire employees. The parties may well be aware that there is some differences of view amongst members of the Commission on this element of the Act, in particular whether all of the provisions of an agreement must pertain to the requisite relationship or whether or not it is the characterisation of the agreement as a whole.

PN38

The Atlas Steel's approach, which is an example of the former, often called the relationships or relevant relationships test, requires the Commission to be satisfied that the provision in question pertains to the employment relationship, or it operates upon or alters that relationship, or is incidental or ancillary to it. The alternative approach, and both of these have Full Bench backing, require the Commission to consider whether or not the agreement as a whole meets that characterisation.

PN39

On this occasion, it is not necessary for me to decide which line of authorities I should follow. In my view, given the particular nature of the labour hire employee provision, I believe that it pertains to the requisite relationship in that it is at least incidental or ancillary to in that either it supports the provisions of the agreement in the manner as suggested by both parties, including the protectional reinforcement of the conditions for the employees that are subject to the agreement. I will wait for another day to deal with the apparent conflict in the authorities of the Commission.

PN40

The second matter that arises in terms of the certification of the agreement is whether or not it meets the no disadvantage test and that is a relatively straightforward matter, given the terms of the agreement, its predecessor and of course the application of the requisite safety net. In my view the agreement is a beneficial one, it clearly meets the no disadvantage test, and for that reason, it can and should be certified.

PN41

In that context, the Commission does hereby certify this agreement pursuant to the Workplace Relations Act 1996. The agreement will formally come into force on and from today's date and will have a nominal life until 6 January 2006. In that respect, I do note that the agreement states its duration as taking effect from 7 January 2004. That can now be given effect to, at least by way of administrative action, and if I have understood correctly the process, that has probably already occurred.

PN42

I indicate, however, that of course leave has been granted to amend the agreement to reflect the editorial changes. In my view, that is both within the power and the discretion of the Commission and in that context, Ms Siedel, if you can supply the replacement pages to the Commission as soon as possible, I will consolidate the same before I add the certificate. That will then be forwarded to all parties for your own use and records and for use in the workplace.

PN43

Lastly, I do note what the parties have implied in respect of the long-standing and constructive relationship between the parties. I am sure that the agreement will stand you in good stead and I wish the company and the union all the best in that regard and I will see you again in due course.

ADJOURNED INDEFINITELY [2.28pm]