AG2004/7125, Transcript of Proceedings [2004] AIRCTrans 3733 (21 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 13597

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER LARKIN

AG2004/7125

APPLICATION FOR CERTIFICATION
OF AGREEMENT

Application under section 170LK of the Act
by Ozevents Pty Limited for certification of
the Ozevents Certified Agreement 2004

SYDNEY

12.01 PM, THURSDAY, 9 SEPTEMBER 2004

PN1

MR R. MILLER: Director.

PN2

MR D. YOUNG: Employee representative.

PN3

MR P. HALL: Employee representative.

PN4

THE COMMISSIONER: Mr Miller, this the second application for certification of an agreement by your company. On the first occasion, which was on 10 August before the Commission, application AG2004/6225, the agreement was not certified, as I determined that I could not certify the agreement and I did go into conference with the parties and raised a number of issues. This application now for certification of the Ozevents Agreement was lodged on 31 August. There are a couple of queries that I have but prior to me actually addressing that, could you address certification for me, please or the application for certification.

PN5

MR MILLER: Yes. We went back after the last hearing and put another one together. We changed a few things like you asked. Had a look at putting a few things in there and stuff like that and the next day we brought the casual employees in to hand them this agreement again so that they can have enough time to look over it, every little detail, and then come back at the end of it, after the time, and make an agreement on what they thought of it.

PN6

THE COMMISSIONER: All right. Do you have a copy of your notice of intent to make the agreement?

PN7

MR MILLER: Yes.

PN8

THE COMMISSIONER: Could you put that before me, please.

PN9

MR MILLER: I have one here, somewhere.

PN10

THE COMMISSIONER: Could I ask you, what is the total number of employees?

PN11

MR MILLER: Eleven.

PN12

THE COMMISSIONER: On the statutory declaration, that particular section was not completed which is 5.3 of the statutory declaration so you would seek that that be amended to include total employees covered by the agreement as 11?

PN13

MR MILLER: Yes.

PN14

THE COMMISSIONER: If I look at 5.5 of the statutory declaration, those 11 are casuals?

PN15

MR MILLER: Yes.

PN16

THE COMMISSIONER: Thank you. The notice, there is two points. The date in your notice of intent is dated 1 July. The statutory declaration state the notice, along with the agreement, was provided to the employees on 11 August. That might be a typographical error, I don't know.

PN17

MR MILLER: Yes.

PN18

THE COMMISSIONER: So your submission is it was 11 August?

PN19

MR MILLER: Yes.

PN20

THE COMMISSIONER: Then a vote was held on 30 August?

PN21

MR MILLER: Yes.

PN22

THE COMMISSIONER: Your notice does not completely reflect the requirements of the Act in regards to 170LK - - -

PN23

MR MILLER: Commissioner, the whole thing is, what you said last time, is to give then enough time to, you know, a knowledge of what is going on, the agreement and stuff like that. I gave them time to, you know, really look at top to bottom and know what is going on. Just in the - yes, I understand what hasn't been written there - - -

PN24

THE COMMISSIONER: It is not so much the time, you have given them over the 14 day mandatory requirement, it is actually the wording of representation. I will mark the notice of intent.

EXHIBIT #A1 NOTICE OF INTENT

PN25

THE COMMISSIONER: Having considered that notice, while it does not completely reflect the words of the statute verbatim, I am prepared to accept the intent of that notice is in accordance with 170LK(4) and would have provided the required information to employees of their rights in regard to representation. Then the vote was - a meeting was called on 30 August and the agreement was discussed with employees?

PN26

MR MILLER: Yes, that is right, yes.

PN27

THE COMMISSIONER: Could you tell me about the vote.

PN28

MR MILLER: The vote was pretty much all for the new agreement.

PN29

THE COMMISSIONER: How many voted for the agreement - a yes for the agreement out of the 11?

PN30

MR MILLER: All the casual employees did vote, yes.

PN31

THE COMMISSIONER: So it was a unanimous agreement to accept the agreement?

PN32

MR MILLER: Yes, because they are going on rates which I put in the agreement, let me tell you, a lot better than what is out there at the moment or what is going on. I have employees which work in the company, which I put together, to try to certify this agreement - the company which they were working for which already have agreements, let me tell you it is a shambles. Not getting paid right, how low it is, okay. Some people are doing 15.50, 16, you know, around those rates. That is why I brought it up to a level as you asked.

PN33

THE COMMISSIONER: Well, we will get to the rates in a moment. At the moment we are talking about the statutory requirements for the application to satisfy. So you say that the employees had the - well, they had more than 14 days to consider the agreement. There was a discussion with the employees on 30 August in relation to the agreement and then you say a vote was taken and it was unanimously accepted by the 11 casual employees to accept the agreement.

PN34

MR MILLER: Yes.

PN35

THE COMMISSIONER: Okay. Now, there is another issue in relation to the awards that underpin the agreement and this was an issue that was raised in relation to the other application that I had before me and that transcript of that day, at paragraph number 133 and paragraph number 141 and 142 reflects the discussion in relation to that. In your statutory declaration, and also in your agreement at clause 3 and your statutory declaration at 6.1, reference is made to the Federal award.

PN36

In the statutory declaration it outlines three awards that underpin the agreement for the purposes of the no disadvantage test, being State and Federal awards. In the agreement, at clause 3: Relationship to award, it specifically states that the relevant Federal award will apply where the agreement is silent.

PN37

Now, on my understanding, Ozevents are not respondent to a federal award. In other words, there is no federal award that governs the terms and conditions of employees employed by Ozevents Proprietary Limited. Now, is that true?

PN38

MR MILLER: Your Honour - - -

PN39

THE COMMISSIONER: Yes, Mr Young?

PN40

MR YOUNG: I'm sorry, Your Honour. If I could just help Nigel out here for a minute.

PN41

THE COMMISSIONER: Yes.

PN42

MR YOUNG: In relation to the award, my information is through a friend that has a friend in the Department of Industrial Relations, that the federal award overrides the state award.

PN43

THE COMMISSIONER: Only if you are respondent to a federal award.

PN44

MR YOUNG: Okay, thanks very much. But to cover that - to cover that, once again, if I asked Alissa to supply these - - -

PN45

THE COMMISSIONER: If you - sorry?

PN46

MR YOUNG: Sorry, Alissa my friend, Alissa Murphy that has a friend in - she's got off the web and state and federal awards that are aligned with, you know, what we are trying to do.

PN47

THE COMMISSIONER: The industry. The industry.

PN48

MR YOUNG: The industry, thank you very much. And I give these awards to Nigel and when he handed us the letters, he - with the letter of intent, he supplied the documentation to show the two awards. I do realise that last time we were here in the Commission that you had concerns about the - between the federal and state awards, so basically what I tried to help Nige out to do was to make sure that with Peter and the other employees, we knew exactly what awards were what. We didn't - we weren't - yes, it does say federal and we agree it was under the federal award, but trying to help Nigel out and indeed ourselves, I - we showed - I give Nigel the paperwork to show us and the other employees the two awards, state and federal. As much as we could get.

PN49

THE COMMISSIONER: The difficulty is that the employer is not bound by the federal awards.

PN50

MR YOUNG: Yes.

PN51

THE COMMISSIONER: So legally, the federal awards do not apply to Ozevents Proprietary Limited.

PN52

MR YOUNG: Yes, okay.

PN53

THE COMMISSIONER: They have no relevance to your - unless, which would - in other circumstances if you weren't - if there wasn't a common or a state award. But the awards, the common rule awards, in regards to security and theatrical, and I'm just paraphrasing - - -

PN54

MR YOUNG: Media something, it is.

PN55

THE COMMISSIONER: - - - parking attendants and hotels, there are state awards which on my understanding are common rule awards.

PN56

MR YOUNG: Yes.

PN57

THE COMMISSIONER: And those common rule awards contain classifications that are the same or similar to the employees employed by Ozevents Proprietary Limited. So therefore, they, for the purpose of the legislation, they would be the relevant awards governing the terms and conditions of employees that are employed by Ozevents Proprietary Limited.

PN58

MR YOUNG: Yes. It was all - both awards were quite similar on the monetary basis.

PN59

THE COMMISSIONER: Yes.

PN60

MR YOUNG: As - - -

PN61

THE COMMISSIONER: But that's not the point. The point is that if something - - -

PN62

MR YOUNG: Yes.

PN63

THE COMMISSIONER: - - - does not apply, then there is no right for employees to access terms and conditions of federal awards which is not binding on their employer.

PN64

MR YOUNG: Yes.

PN65

THE COMMISSIONER: In other words, they can't prosecute for non payment of wages under a federal award.

PN66

MR YOUNG: Yes.

PN67

THE COMMISSIONER: If the federal award - - -

PN68

MR YOUNG: I can - yes.

PN69

THE COMMISSIONER: - - - does not apply to the employer.

PN70

MR YOUNG: Yes.

PN71

THE COMMISSIONER: You have got to be a respondent to a federal award, not so a state award where the constitutional limitations in the state system. The constitutional limitations in the federal system do not apply to the New South Wales system. So - - -

PN72

MR YOUNG: So is that because it says - excuse me again for ignorance - - -

PN73

THE COMMISSIONER: No, no, no. That's fine.

PN74

MR YOUNG: Is that a problem with that to actually say federal, like in brackets, on the award?

PN75

THE COMMISSIONER: I think we can address that, if you just give me a minute.

PN76

MR YOUNG: Yes.

PN77

THE COMMISSIONER: Thank you. Now, for the purposes of the no disadvantage test, I rely upon the state awards - - -

PN78

MR YOUNG: Yes.

PN79

THE COMMISSIONER: Unless I'm told differently, because I know that this company is not respondent to the federal awards. So to ascertain whether the agreement on balance does not result in a disadvantage in terms and conditions of employees, I would view the state awards, which I have done.

PN80

MR YOUNG: Yes.

PN81

THE COMMISSIONER: Now, in regards to the clause 3 of the agreement, it is advising employees and anyone else who looks at this agreement, that where the agreement is silent, the terms and conditions of the federal award would apply. Now, that is incorrect. It is the terms and conditions of the three state awards that would apply. Now, I'm not even going to look into what the difference is in terms and conditions of those awards, state and federal, are, because it is just not necessarily relevant.

PN82

The point is that the agreement should reflect what legally does apply to employees of Ozevents when the agreement is silent. Employees need to know that and anyone within the actual agreement for enforcement purposes should know that as well. That is not insurmountable in a sense, and I will get to the rates of pay in a moment. Under section 170LV, the Commission can accept undertakings in relation to the operation of the agreement.

PN83

MR YOUNG: Commissioner - - -

PN84

THE COMMISSIONER: And if satisfied, that the undertaking meets the Commission's concern, certify the agreement. Now, I've asked my associate to do a copy of two sections of the Act in relation to agreements which she did put that copy in front of you. That goes to 170LT and it also goes to 170LV. That is the first point I will raise with you. The next point I will raise with you is, this agreement is to expire three years from date of certification, but in actual fact - in actual effect, it continues in force until it is terminated or replaced by another agreement and what have you.

PN85

MR YOUNG: Yes.

PN86

THE COMMISSIONER: So it cannot have a nominal expiry date over the three years in accordance with the legislation.

PN87

MR YOUNG: Yes.

PN88

THE COMMISSIONER: But it still has life after the three years.

PN89

MR YOUNG: Yes.

PN90

THE COMMISSIONER: Now, this is my concern. The rates of pay in your agreement at clause 5, on a cursory view, are a higher rate than the base rate applying in the agreement. In regards to the two supervisory classifications in the award, there would be a leading hand or supervisory allowance depending on what award you are looking at. But whether or not those supervisory roles would sit at the level 2 or the level 4, is possibly debatable. But just basically looking at the rates contained at clause 5 of the agreement classifications, which is $16 for level 1, $19 for level 2, $19 for level 3, and $20 for level 4.

PN91

They are in some cases just above the base rate in the awards. But the difficulty is that your rates of pay as outlined in clause 8 rates of pay is an all up rate. Those rates of pay are to compensate for all overtime, all Saturday work, all Sunday work, all public holidays, all shift penalties and all allowances. Now, depending on what work the clients of Ozevents require, the employees to be covered by this agreement may or may not be on average disadvantaged. There is a strong possibility that if the work that Ozevents perform - - -

PN92

MR YOUNG: It is all Sunday work I think.

PN93

THE COMMISSIONER: Well, depending on the employee as well.

PN94

MR YOUNG: Yes.

PN95

THE COMMISSIONER: Depending on the rosters, depending on the number of shifts each individual employee undertakes, depending over what period of time, how many shifts per week, how many day shifts in comparison to weekend work, how many night shifts. It is also allowances as well. Now, there may be the requirement for employees to be paid a gun allowance, some other form of allowance, but that in itself would depend upon the type of work that Ozevents takes on. Now, on the basis, if I looked at this plainly, I would form the view that on balance I'm not satisfied that employees would not be disadvantaged.

PN96

However because a number, because due to my panel work a number of 170LK agreements that come before me suffer from the same dilemma, predominantly in the security industry, but also in the entertainment industry, on a number of occasions where this dilemma has arisen, I have put to the applicant that I would be prepared to take an undertaking under 170LV, which you now have the section in front of you, that the employer would undertake to perform an audit of an employee's earnings under the agreement in comparison to what they would have earned under the award at the end of a 12-month period and/or on termination.

PN97

If a discrepancy is shown in the payment to what employees would be eligible to earn, then that payment is to be made up within 7 days. Following on from that, I would require an undertaking again that within 8 weeks that an application under 170MD to vary the agreement will be made in accordance with the legislation to vary the agreement to include the audit provision in that agreement and in the case of this particular application and agreement before me, to vary clause 3 to reflect that it is the State awards listed by name, so employees or any others - - -

PN98

MR HALL: Yes, have the opportunity.

PN99

THE COMMISSIONER: - - - will know what the awards are that govern their employment. So clause 3 would be amended to reflect that.

PN100

MR YOUNG: Commissioner, if I could just - - -

PN101

THE COMMISSIONER: Yes, I will stop now. I needed to get that on. So you understand what I'm saying is that I have a concern - - -

PN102

MR YOUNG: That is fine, I certainly do.

PN103

THE COMMISSIONER: - - - I'm saying to you, considering I know in conference you explained to me about what you are trying to achieve with this operation.

PN104

MR YOUNG: Yes.

PN105

THE COMMISSIONER: I have a concern that the agreement does not on balance pass no disadvantage. However, I'm prepared to accept an undertaking under LV which will form part of the agreement, that how clause 3 of the agreement is to operate in regards to the named State awards, that an audit will be conducted at the end of 12 months on each employee or on termination and any discrepancy made good to that employee and an undertaking within 8 weeks of certification that an application under 170MD - and I will also ask my associate to provide you with a copy of that section of the Act - which means going back in a vote and what have you, but you can see the sections, that under 170MD the agreement would be varied within 8 weeks.

PN106

There is a catcher in that. Section 170LV(2), if you look at it, states that if an undertaking is not complied with the Commission may terminate.

PN107

MR YOUNG: Yes.

PN108

THE COMMISSIONER: Yes, okay.

PN109

MR YOUNG: Commissioner, more than anything that me, Peter and the other employees are very, very aware about the disadvantages of enterprise agreements, and as I mentioned before, being from a union background, I've tried to instil in them that, you know, this is what it is all about and I know, and being a friend of Nigel's as well, I can advise him about the disadvantages and advantages. I understand. If anything, I understand in this Court is the advantages or disadvantages to employees and I do know that, you know, a couple of - as a security background, $19, I do know that Peter was recently getting paid $16 under enterprise agreement and predominantly working the weekend and having to do the same job under the award of 13.41, if you understand what I'm saying.

PN110

THE COMMISSIONER: Yes. It is an on-balance argument. There is nothing else in the agreement that can balance what I see as a disadvantage and if you were working all weekend work, that rate of pay would be a disadvantage.

PN111

MR YOUNG: Yes.

PN112

THE COMMISSIONER: But having said that, if you are a casual employee and you are required to work two day shifts during Monday to Friday, receiving 16, 19 or $20, and only one Saturday shift, then on balance you would be better off.

PN113

MR YOUNG: Exactly right.

PN114

THE COMMISSIONER: But if you are required to work over a period of time on one day shift Monday to Friday but night shift, Saturday night and Sunday night, and a public holiday, then you are disadvantaged.

PN115

MR YOUNG: Yes, we understand that absolutely, completely. That is one part of the disadvantage test that we do understand is that part of it.

PN116

THE COMMISSIONER: Do you wish to take a moment to discuss what I've put to you? What I will do, a decision. It is in transcript - if you order your transcript but I will deal - a decision will be issued to you reflecting what has happened in proceedings and what the Commission's expectation is in regards to undertakings to be complied with. But, Mr Miller, as you are the employer, possibly Mr Miller, Mr Young and Mr Hall, you may like a 5-minute adjournment to consider what I've put to you to see whether you would still seek certification of your agreement and if that is the case, as long as you clearly understand what the requirement would be, then I would be prepared to certify today. Do you seek to have a 5-minute discussion?

PN117

MR YOUNG: Commissioner, my only concerns are about that as an employee representative I'm bound to operate for the employees as well as myself. I would be saying go for it, $19 an hour as a security guard, or indeed $16 for an usher and the like, is an absolute bonus for us. Having said that, as a friend of Nigel, what concerns me is once we take on the work, once Nigel gets work, we've just missed out on the other job we had because of the delay, once work is taken on, us as employees are paid these sums, certainly would be advantage to me if we come back to the Commission in 8-weeks time and found that we were being underpaid and we got a nice cheque off Nigel for $450 or $20 or whatever, but as a friend of Nigel, you know, that's quite an undertaking to commit to.

PN118

Because if it found by someone who we can't regulate to say that we believe that we are getting paid fairly, they decide on how much Nigel has to give us. You know, predominantly it could send him out of business. If we were lucky and Nigel was lucky to pick up plenty of work and it was found to be $1.50, you know, that could add up to, you know, tens of thousands of dollars if we were - and indeed after 12 months - - -

PN119

THE COMMISSIONER: Well, you misunderstood. The order would not be conducted after 8 weeks. The order is to be conducted at the end of a 12-month period, or on termination. The agreement would have to be varied within an 8-week period from certification to include in that agreement the provision of an audit clause.

PN120

MR YOUNG: Thank you very much. I just kind of misunderstood but again, after 12 months, if I may say, that again if Nigel - Ozevents, you know, if it took off and we were lucky enough to secure plenty of work, after 12 months instead of running - the disadvantage running into 10,000, what if it run into half a million?

PN121

THE COMMISSIONER: Well, I don't know. That is the way you would roster though. You see the no disadvantage test is that employees are not to be disadvantaged in comparison to their award conditions.

PN122

MR YOUNG: Yes, of course, I understand, we understand.

PN123

THE COMMISSIONER: Now, if you are rostering to an extent that employees are disadvantaged over a 12-month period, then so be it, because you should be paying under the award. Now, what happens out there in the industry, I'm not fool enough to think that everybody is squeaky clean but I have no statutory powers over what happens in the industry, nor do I have any powers of enforcement. My power is concerned with the certification of agreements, in this particular case, and whether that agreement I am satisfied meets the no disadvantage test on balance.

PN124

On the face of it, I would say it does not because the rates of pay will not equate to weekend work but I am saying that I am prepared to accept an undertaking that at the end of 12 months if, after an audit on employees wages, there is a disadvantage to any particular employee, that that disadvantage is to be rectified and that will depend on how you roster. If you roster people continually on penalty shifts then yes, at the end of 12 months, there most definitely will be quite an expensive disadvantage.

PN125

If they are rostered on a combination of day-shifts, Monday to Friday and weekend shifts, then overall they are not disadvantages. I think that I would prefer to give you a moment to consider because I think I have clearly put to you what my expectation is. It is for you to consider whether you wish to take that opportunity on board and then consequences flow in regard to future applications in relation to varying the agreement. I will adjourn for a period of 10 minutes. You take it on board and if the employer is prepared to give me the undertakings I seek, then I will certify. I will do a decision. You will order your transcript and it will be quite clear to you exactly what has to happen in the future.

PN126

MR YOUNG: Your Honour, Nigel can get some legal advice over the phone if he can in the next 5 minutes?

PN127

THE COMMISSIONER: I will give you 10 minutes. My associate will come back in 10 minutes. If you require - it is up to you. If you require an adjournment for a period of time, then by all means. I would prefer you to be comfortable and know exactly what has been said so my associate will come back in a period of 10 minutes and you can let me know what you decide.

PN128

MR YOUNG: Just one more, Commissioner, I am sorry, was that 12 months - after the 8 week's time, does the 12 months start from there or does the 12 month start from today's date.

PN129

THE COMMISSIONER: 12 months from certification.

PN130

MR YOUNG: Thank you very much.

PN131

THE COMMISSIONER: So I want an audit conducted 12 months - every 12 months, every 12 months because the agreement runs for 3 years but it has an effect after that, so every 12 months or on termination.

PN132

MR YOUNG: Of the employee.

PN133

THE COMMISSIONER: Of the employee.

PN134

MR YOUNG: Yes.

PN135

THE COMMISSIONER: The other 8 weeks is that within 8 weeks, under section 170MD, the agreement will be sought to be varied to include the audit provision and rectify clause 3 in regards to award coverage.

PN136

MR YOUNG: Thank you very much.

PN137

THE COMMISSIONER: The Commission is adjourned.

SHORT ADJOURNMENT [12.34pm]

RESUMED [12.53pm]

PN138

THE COMMISSIONER: Yes, Mr Miller or Mr Young or Mr Hall.

PN139

MR YOUNG: Thank you, Commissioner, I will keep going. Your Honour, at this stage we - Nigel is willing to undertake any undertaking the Court wishes. Having said that, there is just a number of concerns that we have. My only concern is, as Nigel's friend, not as an employee representative, if I can bring up these concerns. I have worked for security company before. I you do notice in the agreement we have taken the uniform part of the agreement out, the deposit for the union part of the agreement out.

PN140

A lot of the time, they just go - we don't know when these employees have left the company. Also the monetary fact of trying to audit every single employee that leaves the company, the security industry is very transit and I know both me and Peter, on any one occasion, has worked for three companies. You know my understanding there? On termination of employment - in Newcastle - just relating to the security part of the thing at the moment - people come and go are that transient, work for a business and don't work for a business, how do you know when they are terminated?

PN141

THE COMMISSIONER: Well, because you are the employer. If they have abandoned their employment, they are no longer an employee. I mean, if you can't find them - that is just - I don't understand the point. All I need to know is does the employer wish to put the undertakings to me which I have sought, or does the employer not. I know the industry. If people leave, people leave. I mean, if you can't find them you can't find them. It would be an audit of employees every 12 months. If they are not an employee - or on termination. If you terminate them, that is when the audit is done.

PN142

If they just leave you and you can't find them, you know, so be it. I just need to know whether you are prepared to make the undertakings because I think I have made it quite plain that in looking at this particular agreement I cannot be satisfied that on balance employees would not be disadvantaged in relation to the terms and conditions when regard is had to the provision of the State awards.

PN143

MR YOUNG: Your Honour, Nigel and I, we have discussed it at fair length. He is willing to take them undertakings but more than likely not the agreement will not be used because Nigel is going to subbie out the work to another enterprise agreement for $16.

PN144

THE COMMISSIONER: Well, withdraw the application then.

PN145

MR YOUNG: I am saying more than likely not that might be the case.

PN146

THE COMMISSIONER: Well, I really don't know. I mean, that is not before me. I am asking a straight question. Either you withdraw the application or you give the Commission the undertaking.

PN147

MR YOUNG: I think we go with the undertakings, Commissioner.

PN148

MR MILLER: Yes.

PN149

THE COMMISSIONER: All right. So you are prepared to note the undertakings that I have outlined. All right, on the basis that those undertakings will be given, then I am prepared to certify the agreement with effect from today's date. That formal certification will issue in due course. The undertakings given will be typed up in my decision, which will issue this afternoon. Those undertakings are to form part of the agreement. Within 8 weeks, which will be one of the undertakings, an application will be made to this Commission under 170MD to vary the agreement in relation to clause 3 and in relation to the inclusion of an audit clause. On that basis, the Commission stands adjourned. Thank you, gentlemen, and I wish you good luck.

ADJOURNED INDEFINITELY [12.55pm]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #A1 NOTICE OF INTENT PN25