AG2004/6025, Transcript of Proceedings [2004] AIRCTrans 3039 (4 August 2004)

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TRANSCRIPT OF PROCEEDINGS

O/N 3035

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER RICHARDS

AG2004/6025

APPLICATION FOR CERTIFICATION
OF AGREEMENT

Application under Section 170LK of the Act
by MediHerb Pty Ltd for certification of the
MediHerb Pty Ltd and Employees Certified Agreement

BRISBANE

10.21 AM, MONDAY, 26 JULY 2004

THIS HEARING WAS CONDUCTED BY TELEPHONE
AND RECORDED IN BRISBANE

PN1

THE COMMISSIONER: Good morning, everyone. Effectively - look, do you mind if I just run you through by way of taking your formal appearances once more? Who do I have representing the company?

PN2

MR M. PETERS: Mark Peters from MacDonnells Solicitors representing MediHerb, and on the other line you'll have MR JOHN CHALLEN, the National Human Resources Manager, and MR JIM O'DEMPSEY, who's a representative from the MediHerb Representative Team.

PN3

THE COMMISSIONER: Okay, good. Thank you, Mr Peters. Mr Peters, look, before we get into this matter I notice there's no - - -

PN4

MR PETERS: Sir, it's a little bit faint. You might need to either turn the volume up or get a little closer to a speaker.

PN5

THE COMMISSIONER: Good. Is that better?

PN6

MR PETERS: That's better, yes. Thanks, Commissioner.

PN7

THE COMMISSIONER: Now, I take it there's no relevant award for the purposes of this agreement?

PN8

MR PETERS: There isn't, and what had happened on a previous occasion, Commissioner Hodder had designated three awards as being relevant and they're subject to a previous order of the Commission.

PN9

THE COMMISSIONER: No, that's fine. I'm just querying in my mind whether for current purposes we actually need to redesignate those awards as being the designated awards for the purposes of this agreement?

PN10

MR PETERS: Yes. I don't think that happened on the previous occasion. I think it's - the awards were designated in 2000 - Mr Challen might be able to correct me - by Commissioner Hodder, and then again in 2002 there wasn't a fresh reordering of the designated awards. I think the Commission relied upon the order in 2000.

PN11

THE COMMISSIONER: Yes. That might be the case. I'm not - in my own view, I'm not too sure that section 170XF of the Act contemplates the continuity of designated awards through the life of agreements.

PN12

MR PETERS: Right.

PN13

THE COMMISSIONER: Section 70XF of the Act only contemplates designation being made in respect of the application.

PN14

MR PETERS: Right.

PN15

THE COMMISSIONER: Well, the implication of that is, in my view, as a matter of a statutory prescription you need to redesignate the awards on each occasion. I say that, and I think - I don't know what the policy - I mean, I don't know what the policy intent under such a statutory provision might be, but I would envisage that it's a cautionary approach in the event there is some change in the work that's done under the agreement over the course of its previous incarnations, and it's there to ensure that everyone is covered by the - if the work changes there's still appropriate effective award coverage - - -

PN16

MR PETERS: Right.

PN17

THE COMMISSIONER: - - - for that new work. So, look, I think we just best deal with that issue first of all and I think I can provide some latitude in that regard. I understand that the designation of the three awards that has taken place on two previous - took place in the year 2000, from what you're telling me.

PN18

MR PETERS: That's my recollection, Commissioner, and if you wanted me to check that I could go back over old files, but - - -

PN19

THE COMMISSIONER: Well, it was with the certification - consequent to the certification of the - or immediately subsequent to the certification of the first generation agreement I presume, was it?

PN20

MR CHALLEN: Actually, Commissioner, the first one was the agreement - was the Federal agreement. That's where we had the - - -

PN21

THE COMMISSIONER: Right. So it was the first generation of your Federal agreement?

PN22

MR CHALLEN: That is correct, Commissioner.

PN23

THE COMMISSIONER: Okay. Now, look, and for that purpose back then the Clerical Award - these are all State awards - the Clerical Employees Award 2002, the Professional Scientists Award 2002 and the Food and Drugs Store Employees Award - Southern Division, Eastern District - 2003 were all the awards that were designated at that point, were they?

PN24

MR CHALLEN: That's correct, Commissioner.

PN25

THE COMMISSIONER: Now, has there been any change in the work that is done under this proposed - this agreement that is now before me by way of application in any of those previous agreements?

PN26

MR PETERS: I'm not aware of anything but Mr Challen would be able to advise you of the operational aspects of that, Commissioner.

PN27

MR CHALLEN: No, Commissioner, we're still doing exactly the same work as what we've done right - - -

PN28

THE COMMISSIONER: Yes, so there's no different work being done that would require employees being covered by any other awards?

PN29

MR CHALLEN: No, Commissioner.

PN30

THE COMMISSIONER: No. So, in your view, these three State awards remain the awards for the purpose of designation?

PN31

MR PETERS: Yes, Commissioner, and in discussions I had with Mr Challen last week where we worked through the awards for the purposes of the comparative table, we were still talking the same application as we worked through the various groups of employees. They certainly appeared to me to still be the relevant awards to employees we were discussing.

PN32

THE COMMISSIONER: Yes, the relevant designated awards.

PN33

MR PETERS: Yes.

PN34

THE COMMISSIONER: We'll call them that if you like. Well, look, on that basis can I therefore, even though - well, I will designate these awards as being - well, I will order - by order after these proceedings I will order that these awards as enumerated previously are the designated awards for the purposes of the application that's before me.

PN35

In so doing, I will exercise my discretion under rule 6 to waive the requirements of the rules at rule 63 and its consequent requirement to have made an application for designation under form R45. So I waive those. For today's purposes I waive those requirements. I've had the submissions of the parties to the extent that I consider them necessary to satisfy me that the three awards as previously specified are the designated awards. Now, that said, those awards are now the designated awards and we can proceed on a proper - - -

PN36

MR PETERS: Yes. Thank you, Commissioner. I appreciate that approach to dealing with that issue.

PN37

THE COMMISSIONER: That's all right. We can now proceed on a sound footing for certification submissions, Mr Peters.

PN38

MR PETERS: Yes, Commissioner. We rely upon the section 170LK application filed on 15 July and the two supporting affidavits of Mr John Challen and Mr James O'Dempsey with all the attachments that are with those, Commissioner, and also the comparative tables that were presented to the Commission last Thursday.

PN39

THE COMMISSIONER: Can I just ask you, Mr Peters, are the - if you don't mind me just cutting to the chase a bit?

PN40

MR PETERS: Yes.

PN41

THE COMMISSIONER: For the purpose of certification, I need to consider the rates applicable in the agreement to the award rates. The rates at clause 24 of the agreements specify the pre-agreement rate and a 1 July 2004 rate. What is the prevailing rate at this moment?

PN42

MR PETERS: I think Mr Challen will inform you, Commissioner, that as of 1 July they introduced the new rates on the assumption that this would be approved, that if for any reason that it wasn't approved that those rates were to continue to apply effective from 1 July, and they are the rates designated in the second column. Is that correct, John?

PN43

MR CHALLEN: Yes, that is correct, Commissioner.

PN44

THE COMMISSIONER: That's all right then.

PN45

MR PETERS: That's the current rate that is applicable, is the rate after the 1.5 per cent increase to commence from 1 July.

PN46

THE COMMISSIONER: Okay.

PN47

MR PETERS: So that's already been paid. It's not a case of it being retrospectively paid.

PN48

THE COMMISSIONER: That's all right. That's just a comparative for me, then, the higher rate than the pre-agreement rate. That's all right then. Now, sorry, Mr Peters, if I interrupted your flow there.

PN49

MR PETERS: No, no. That's all right, Commissioner.

PN50

THE COMMISSIONER: I'll let you go ahead if you like. Do you have some further submissions to make?

PN51

MR PETERS: Yes, Commissioner. Our submission would be that the employees have negotiated this arrangement which involves a significant increase in the actual wage levels that would apply and that if one was to make a comparison between the applicable wage levels and the wage levels under the award, the employees are going to be markedly better off. And subject to any particular issues you'd like us to address, Commissioner, it is the clear submission of MediHerb and the employee representative team that the employees under this agreement are going to be better off than they would have been under the existing awards that apply and certainly by comparison to the previous agreement, and therefore we would ask, Commissioner, that you approve the agreement and take into account that the present, or the new agreement will pass the no disadvantage test for the purposes of the Act.

PN52

Commissioner, the application documentation, the affidavits of Mr Challen and Mr O'Dempsey clearly outline the process that's been followed and, Commissioner, we'd submit to you that that has occurred in accordance with the procedures and the requirements of the Act. And, unless there's any particular concerns you have in relation to that, I'd rely upon the material in the affidavits to support the process that has been followed. They're the main things we wanted to submit, Commissioner.

PN53

THE COMMISSIONER: Good. Thank you. I have no other concerns. Sorry, I'm just checking - the agreement was made within time, wasn't it?

PN54

MR PETERS: Yes.

PN55

THE COMMISSIONER: Yes, it was.

PN56

MR PETERS: Well, Commissioner, I think the agreement was made on 24 June.

PN57

THE COMMISSIONER: Perhaps it's the next agreement that was out of time. I'll see. I'm sure one was and I've just forgotten which one at the moment, but we shall see shortly.

PN58

MR PETERS: Sorry, with respect to other applications you have before you today?

PN59

THE COMMISSIONER: That's right, yes.

PN60

MR PETERS: Right, yes. Commissioner, I can give you the dates if you wish. Are you talking about the 14 day notification period or the application being out of time within the 21 days after approval?

PN61

THE COMMISSIONER: The application. So it's the 21 days pursuant to section 170LM.

PN62

MR PETERS: Yes. The agreement was approved on 24 June in this case and I understand Mr Challen filed the application and the supporting material on 15 July, which was within time.

PN63

THE COMMISSIONER: Yes, within time. It's within time.

PN64

MR PETERS: Just.

PN65

THE COMMISSIONER: That's fine. Okay, then. Look, thanks very much for those submissions, and I've had regard to the extensive documentation before me and the statutory declarations. I'm of the view that the agreement meets the requirements of the Act and has been made consistent with the rules of the Commission if only to the extent that I have waived some requirements in respect of the prerequisite designation requirements, and I'll deal with those by separate order in relation to this matter, and I certify the agreement to operate from this day to remain in force until 30 June 2006 pursuant to clause 2.2 of the agreement. Thanks very much. Anything else?

PN66

MR PETERS: No, Commissioner. Just one further question: is it likely to be back before the Commission with this similar application either to - within two years, I think it is?

PN67

THE COMMISSIONER: Yes.

PN68

MR PETERS: The only question I'd like to be able to explore with you, Commissioner, is the prospect of being able to get around the issue of the comparative tables. It's a fairly extensive exercise that has to be undertaken and it's draining from both a resources point of view and management time, and also the costs of getting legal assistance in putting it all together so that it really is accurate. I was just wondering, is there some way that the process could potentially be shortcut - shortcut for the satisfaction of the Commission, perhaps by reference back to the earlier agreement that had already been approved?

PN69

THE COMMISSIONER: To be honest with you, you would have to take it up in advance of the next application.

PN70

MR PETERS: Yes.

PN71

THE COMMISSIONER: Because I couldn't really - well, there's two issues: one is that I couldn't project ahead in respect of any other member of the Commission's requirements.

PN72

MR PETERS: Of course, yes.

PN73

THE COMMISSIONER: So, that's just the one significant impediment, and the other is, too, in the even there are any other rule changes - for instance, there might be prospectively over the next two years there could be a rule change, for example, that might require it formally.

PN74

MR PETERS: Yes. I guess I was just wondering, Commissioner, whether there was any practice developing within the Commission generally that I or Mr Challen aren't aware of that could have assisted us in taking a shortened version.

PN75

THE COMMISSIONER: I suppose you could always make the submission that you would be better placed to provide oral submissions in relation to those matters as requested on the day. You could put that alternative view, I suspect.

PN76

MR PETERS: Okay. Well, we'll bear that in mind for next time, Commissioner.

PN77

THE COMMISSIONER: Yes, but I think if you had - once you get a feel for when - you know, the approximate time you're going to make your application, that's something you might want to just, you know, seek some advice, you know, from the Commission. It just depends who seems to be doing it. If I'm still here doing - in this panel, you would approach me, but someone else might be in this panel by that time, I don't know.

PN78

MR PETERS: Okay, good. Thank you, Commissioner.

PN79

THE COMMISSIONER: Okay. We're adjourned.

ADJOURNED INDEFINITELY [10.37am]