AG2004/6942, Transcript of Proceedings [2004] AIRCTrans 3600 (9 September 2004)

AUSCRIPT AUSTRALASIA PTY LTD
ABN 72 110 028 825

Level 6, 114-120 Castlereagh St SYDNEY NSW 2000
PO Box A2405 SYDNEY SOUTH NSW 1235
Tel:[phone] Fax:[phone]

TRANSCRIPT OF PROCEEDINGS

O/N 13436

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT DUNCAN

AG2004/6942

APPLICATION FOR CERTIFICATION
OF AGREEMENT

Application under section 170LK of the Act
by the Dunn Burger Pty Limited t/as Hungry
Jack's for certification of the Dunn Burger
Certified Agreement 2004

SYDNEY

9.50 AM, WEDNESDAY, 1 SEPTEMBER 2004

PN1

MR R. TAPPOO: I am a solicitor, I seek leave to appear for the employer applicant in this matter. I have with me today the employee representative of the company, MS M. SHEPARD on my left. Unfortunately, the intended employer representative, Mr Benjamin Dunn, the Director of the Company and also the deponent of the statutory declaration, ask that he be excused from attending this morning's hearing and apologised for the short notice in relation to this matter, as he is at a company meeting in Brisbane as we speak, and he seeks to rely on his statutory declaration, if it pleases the Commission.

PN2

THE SENIOR DEPUTY PRESIDENT: Very well.

PN3

MR B. GOVIND: I appear on behalf of the Shop Distributive and Allied Employees Association, New South Wales. Your Honour, I also appear on behalf of the Shop Assistants and the Warehouse Employees Federation of Australia, Newcastle in Northern New South Wales. Your Honour, I seek to intervene in these proceedings pursuant to section 43 of the Workplace Relations Act.

PN4

THE SENIOR DEPUTY PRESIDENT: Very well. There are two parts to section 43, Mr Govind?

PN5

MR GOVIND: Yes.

PN6

THE SENIOR DEPUTY PRESIDENT: You might explain which - either all or one or what is the position?

PN7

MR GOVIND: Yes, very well. Your Honour, you would have noted from my appearances that the Shop Distributive and Allied Employees Association, New South Wales, is a State registered organisation. Your Honour, what we would say - if I can take you to section 43. Section 43 gives a party a right to intervene in the proceedings generally. What we say, your Honour, is that under section 43(1) specifically, and that is the section that we would seek to rely on, your Honour, that where the Commission is of the opinion that an organisation, a person, including the Minister, or a body should be heard in a matter before the Commission, the Commission may grant leave to the organisation, person or body to intervene in the matter.

PN8

We would say that for the purposes of that particular section the two unions effectively are bodies that should be heard before the Commission so it is on that basis that we make appearance here this morning. I should add, your Honour, that the first that we knew that this matter was on was perusing the Court listing late yesterday evening so we have had conversations within the organisation with the respective branch secretaries that has resulted in my appearance here this morning. Does the Commission want me to proceed on that basis and show the Commission, with respect, why we say that we should be granted leave to intervene in these proceedings and what is it that the union is seeking.

PN9

THE SENIOR DEPUTY PRESIDENT: It is probably wise, Mr Govind, to put all of your position

PN10

MR GOVIND: Yes.

PN11

THE SENIOR DEPUTY PRESIDENT: And just before you go on, while you have been interrupted - well, I think the simplest way of putting this is to ask you a question.

PN12

MR GOVIND: Yes.

PN13

THE SENIOR DEPUTY PRESIDENT: Has that line been run before? Body - 43(1)?

PN14

MR GOVIND: I believe it has. We have received counsel advice on that.

PN15

THE SENIOR DEPUTY PRESIDENT: I am not interested in counsel's advice, I am interested in decisions.

PN16

MR GOVIND: I couldn't take you to an authority. I suppose the main reason we are here today, your Honour, is this that the Dunn Berger Group had an LJ agreement with the SDA. Now, I understand that this agreement purports to come cover at least one side in Newcastle, that is the Beresfield site, I stand to be corrected. There was a union agreement in place and I have spoken to the secretary of the Newcastle branch this morning and I have been informed that there were efforts made to negotiate another agreement with the company. That agreement - the union agreement, I should say, your Honour, has expired.

PN17

Now, the secretary also informed me that we do have members at that particular site if in fact the agreement purports to cover that, and this morning when the conversations were had with the secretary it was the first that the secretary was aware that there was a non-union agreement that had been rolled out let alone for certification, your Honour.

PN18

THE SENIOR DEPUTY PRESIDENT: All right then.

PN19

MR GOVIND: Essentially what we seek, just so that the - due to the short notice predominantly, your Honour, is that there has been a number of disagreements that have gone before the Commission, that the last one that went through, your Honour, was the Big Bertha agreement that was certified in January. Now, that matter was appealed by the union similarly - it effectively came into place in a similar fashion. That matter is now before the Full Bench so it is on - certainly there has been one date that was set down for hearing date, it is a subsequent date that has been set down for hearing in September and it is driven by concerns predominantly about the very inferior terms and conditions as compared to the shop award as it compared to what the regimes were, your Honour, when these people sort of came off these regimes and predominantly that is where the concern of the union is.

PN20

The union has LJ agreements with Hungry Jack's, that is competitive foods. The union also has - that covers all the corporate stores and it covers a number of the franchises in New South Wales and ACT. All the branches, the other State branches of the union similarly have similar agreements in place with the same organisation. Your Honour, we also have a TPF Restaurants Australia Pty Limited Agreement which covers Hungry Jack's that were ex Burger King companies, a separate and distinct identity, so there is an agreement that covers that part of the business as well, so what we say is we certainly have concerns about these agreements getting before the Commission essentially, with terms and conditions not quite up to scratch when it is compared to those, and invariably - and compared to the underpinning Shop Employees State Award.

PN21

So what we would be seeking before I go too much further, in terms of today's proceedings, your Honour, bearing in mind the notice and bearing that certainly the union was not informed that there was a non-union agreement being rolled out, particularly if there was a union agreement in place, is we would ask for an adjournment, a short adjournment, your Honour, so that we will properly be able to peruse the documents that are on the Court file. The unions had to do that in Big Bertha in the reverse fashion, your Honour, I guess, and that has resulted in the appeal.

PN22

We would rather be able to sort of compare the terms and conditions of what is before the Commission to properly satisfy ourselves that it in fact does not put employees at a detriment in terms of the Shop Award and certainly in terms of the agreement that they are coming off, so we would ask for an adjournment of seven days and we would seek access to the Court file to uplift documents to properly assure ourselves. That is effectively what we seek. It is better than, I guess, doing it after the fact once the agreement is certified.

PN23

THE SENIOR DEPUTY PRESIDENT: Yes, all right. I have let you go on past the actual point about leave to intervene so that both myself and Mr Tappoo have an awareness of what the union is coming from.

PN24

MR GOVIND: Yes, that was the plan.

PN25

THE SENIOR DEPUTY PRESIDENT: So that is all?

PN26

MR GOVIND: Sure.

PN27

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Govind.

PN28

MR GOVIND: Yes, thank you.

PN29

THE SENIOR DEPUTY PRESIDENT: Mr Tappoo, the only question I am interested in at this moment is the application for leave to intervene. What do you have to say about that?

PN30

MR TAPPOO: I seek to object to the intervention, your Honour, on the basis that there is no request. This is an LK agreement, the employer exercised his right to enter into a direct agreement with his employees under section 170LK of the Act. There was - the notice of intent that was given out in relation to this agreement reproduced verbatim the wording of section 170LK(4) of the Act so employees at the workplace - and I might just add on that point obviously I am not in as good a position as Mr Govind to state this but my understanding was that there were no current SDA members at Hungry Jack's Beresfield at the workplace, but in any event the notice under section 170LK(4) reproduced verbatim the words of the Act.

PN31

Employees were aware of their rights to seek representation by an entitled organisation if a member. No request was so made under section 170LK(4). Further, that the first I have known personally about union intervention was this morning when I saw Mr Govind. There has been no notice given to ourselves or, I understand, the Commission prior to this hearing.

PN32

THE SENIOR DEPUTY PRESIDENT: Well, there couldn't be because there is no notice given by the Commission to people at large of the matter being listed and certainly it is not unusual for an organisation or a body to arrive here at 10 o'clock or whatever time, saying we didn't know about this until we read the notice of listing, which of course is the reason for the notice of listing.

PN33

MR TAPPOO: Yes.

PN34

THE SENIOR DEPUTY PRESIDENT: There is nothing hanging on that, Mr Tappoo.

PN35

MR TAPPOO: Yes. We would - my only comment is that the LJ agreement that was in place, my understanding is that it has expired so therefore the employers and employees are merely exercising their rights under the Act to make a non-union agreement and we would seek to object to the intervention.

PN36

THE SENIOR DEPUTY PRESIDENT: Yes. Look, what I think I am going to do in the light of what I have just heard and in view of the fact that, to be quite candid with you both, I am not aware of the argument that you are putting on leave to intervene. That is not to say it is not an effective argument, Mr Govind. I think what I should do is adjourn the matter so that you can marshall your thoughts and as far as I am aware, even at this stage, as a member of the public you are entitled to search the file. As far as you are concerned you may wish to consider the position about leave to intervene.

PN37

There is a novel point been raised. It will take a while for us to work out whether it is a good one or not, Mr Govind, but it certainly is one that requires some consideration. Now, please sit down, both of you.

PN38

MR GOVIND: Your Honour, I should just add that I haven't properly gone into the reasons why the Commission would entertain or exercise a discretionary power under section 43(1). Just in reference to cases - - -

PN39

THE SENIOR DEPUTY PRESIDENT: Oh well, you mean you have got another argument?

PN40

MR GOVIND: No. In terms of what section 43(1) represents I don't want to sort of preach to the Commission what 43(1) is all about, I suppose essentially that is what I am saying, unless the Commission wants me to take the Commission to issues of denial of natural justice and the right to be heard and all those type of arguments.

PN41

THE SENIOR DEPUTY PRESIDENT: No, what I am interested in is the point that you make that a body can, under 43(1) seek leave to intervene and be successful. There is a discretion, of course, but that is as I understand your argument, Mr Govind.

PN42

MR GOVIND: Essentially - - -

PN43

THE SENIOR DEPUTY PRESIDENT: You are not relying on 43(2) at all?

PN44

MR GOVIND: No, no, not - no, we are not, not at this point, your Honour. I mean, I suppose essentially what we also say, if I can add to that in this way, that the SDA New South Wales is a union that is entitled to enrol members at the particular site and invariably it is affected by such an instrument, such an agreement coming into place and what we say is that it is - we are entitled to enrol members in fact. I believe from what the Newcastle secretary tells me is yes, we do have members at that particular site and certainly there was no consultation with the SDA.

PN45

THE SENIOR DEPUTY PRESIDENT: Yes. Well, of course the fact that you have got members is something that can be established in another fashion which it would be necessary to do, I think, for the purposes of this Commission.

PN46

MR GOVIND: I would imagine so, and the SDA is party to the underpinning award in the Shop Employees State Award as I have indicated.

PN47

THE SENIOR DEPUTY PRESIDENT: Yes, that is correct, of course. The relevant award for the purposes of the assessment of the NDT in this matter is this State award, that has always been the case.

PN48

MR GOVIND: And the other, I suppose, thing that has been overlooked is that the SDA did have a relationship - did have a relationship with the company at some point and the SDA was responsible for negotiating wages and conditions at that particular site and with that particular company, and in the main the SDA has responsibility of negotiating wages and conditions across the Hungry Jack's brand.

PN49

THE SENIOR DEPUTY PRESIDENT: Yes.

PN50

MR GOVIND: So what we say is that certainly we are - we do have the ability and we do have an interest in the proceedings sufficient to allow us to intervene and sufficient for us to ask that we properly peruse the file so as to satisfy ourselves that invariably when it is compared to the award, when it is compared to all the other industrial instruments that are in place across the business, that employees, whether they are members or potentially members, certainly we have a right to enrol them, are not going to be worse off. I mean, it is as simple as that, your Honour.

PN51

THE SENIOR DEPUTY PRESIDENT: Yes. Well, I certainly am not going to rule today.

PN52

MR GOVIND: All we are asking for is a bit of time to be able to do that.

PN53

THE SENIOR DEPUTY PRESIDENT: I am not going to rule today on any of the points.

PN54

MR GOVIND: Yes.

PN55

THE SENIOR DEPUTY PRESIDENT: We will go off record to discuss what we are going to do.

PN56

MR GOVIND: Yes, thank you.

SHORT ADJOURNMENT [10.05am]

RESUMED [10.10am]

PN57

THE SENIOR DEPUTY PRESIDENT: I have had a conversation with the representatives of the interests that are involved at the moment and the matter is as a result adjourned generally pending advice from Mr Tappoo as to the appropriate listing arrangements for the matter. I adjourn this matter accordingly.

ADJOURNED ACCORDINGLY [10.11am]