AG2004/6744, Transcript of Proceedings [2004] AIRCTrans 3891 (4 October 2004)

AUSCRIPT AUSTRALASIA PTY LTD
ABN 72 110 028 825

Unit 13-14, Westlane Arcade, Darwin City Mall DARWIN NT 0800
(GPO Box 3544 DARWIN NT 0801) Tel:[phone] Fax:[phone]

TRANSCRIPT OF PROCEEDINGS

O/N 1068

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER LAWSON

AG2004/6744

APPLICATION FOR CERTIFICATION
OF AGREEMENT

Application under section 170LK
of the Act by Myall Operations
Pty Ltd trading as Myall Shores
Eco-Tourism Resort for certification
of Myall Operations Pty Ltd
Certified Agreement 2004

DARWIN

12.55 PM, THURSDAY, 23 SEPTEMBER 2004

PN1

THE COMMISSIONER: Appearances please.

PN2

MR R. TAPPOO: Thank you, Commissioner. I seek leave to appear for the employer applicant. I have with me today on my left, MR B. McKIBBON, the General Manager of Myall Operations Pty Ltd. And on my right I have the employee representative, Ms S. REDDON, R-e-d-d-o-n.

PN3

THE COMMISSIONER: Thank you, Mr Tappoo. Leave is granted for you to appear. The matter before the Commission is an application filed pursuant to section 170LK of the Workplace Relations Act for the certification of an agreement. The applicants are Myall Operations Pty Ltd trading as Myall Shores Eco-Tourism Resort and the employees of that employer. Attached to the application was a statutory declaration by Mr McKibbon dated 23 July. I note that there is no employee statutory declaration with the application for certification.

PN4

However, I note further that all seven employees signed the agreement. Mr Tappoo, will you deal with the application?

PN5

MR TAPPOO: Yes, Commissioner. We seek to have this agreement, which was developed under section 170LK of the Workplace Relations Act, certified pursuant to section 170LT of the Act. The agreement is known as the Myall Operations Pty Ltd certified agreement 2004. We would submit that the agreement complies with all the requirements of the Act and that it provides a net advantage to the employees covered. It was arrived at with a full understanding and agreement of a valid majority of employees.

PN6

This majority, as stated just now by you, Commissioner, ascertained by means of all seven employees signing the agreement as well as through a secret ballot. All employees subject to the agreement, individually received valid notice of intention in accordance with the requirements of section 170LK(2) and (4) of the agreement being made. That all timeframes stipulated by the Act were complied with and that it contains a dispute settlement procedure at clause 23. The employer operates the Myall Shores Eco-Tourism Resort at Bulahdelah in northern New South Wales.

PN7

The proposed certified agreement will not reduce the aggregate earnings per hour or per week as the case may be of existing employees assuming similar rosters and hours are agreed to and worked by the employees, those provided by the parameters in clause 15 of the agreement. The comparison of wages paid under the agreement and the award was provided with the application. We submit this comparison table demonstrates an annual financial advantage for employees working under the agreement.

PN8

Now unlike the previous matters before you, Commissioner, I note that this agreement was drafted - incorporated in the national wage increase to the award which, as you're aware - and you're more than aware, Commissioner - was done on 2 June this year. So the rates in the agreement incorporate the new rates pursuant to the national wage case adjustment that applied to the award. Commissioner, the other difference between this agreement and the previous agreements that were before you - apart from the fact that it is a different award as well - was that there were no previous AWAs at this workplace. It was award workplace before prior to the execution of this agreement that is before you today. In all other respects, however, the issues will be similar to those we've just discussed in the previous matter so in that context I'm happy to deal with those issues one by one.

PN9

THE COMMISSIONER: Just deal with them and modify them as is necessary to cope with this application, Mr Tappoo.

PN10

MR TAPPOO: Yes, sir. Firstly, clause 3.4 of the agreement. I confirm that in the unlikely event that casuals are engaged, their terms and conditions will be in accordance with the award as defined in clause 2 of the agreement. Notwithstanding this, the intention of the agreement is to provide permanent quality employment. And I again confirm that should casuals be hired it will only be in emergency situations to meet a sudden increase in demand and associated increase in manpower for a short period. But the intention of the agreement certainly is provide permanency for all employees covered.

PN11

In terms of subsequent AWAs, again, I confirm that it will be a highly unlikely situation that subsequent AWAs are entered into. It is only what is perceived to be emergency situations. And I confirm that that clause was entered in because it is a requirement of section 170BQ(6)(a)(iii) of the Act which requires express authority in the terms of text of a 170LK agreement for subsequent AWAs to be entered into. In clause 6.3, I confirm that company policies will be made available to all employees and are subject to the requisite public scrutiny.

PN12

And certainly nothing in the - under the terms of this agreement nothing in the company policies can purport to vary the minimum entitlements of this agreement. And I will just seek instructions from my client that if anything does purport to vary the minimum entitlements of this agreement that such policy will not be applied. I will just confirm those instructions. Yes, my client indicates that those instructions, Commissioner. Now the - at clause 11.3 - I will just get my client to confirm - first of all that the terms of the agreement itself requires such a view; it is compulsory. And I will just get my client to confirm the nature of that review, Commissioner.

PN13

THE COMMISSIONER: Can you explain to me how it will be conducted and who will represent the employees; how will they be involved?

PN14

MR McKIBBON: Who will represent the employees? The employee representative has been selected; Ms Reddon is here today. And I will propose that in any future engagement she will be again asked to be a representative. And any other employees will also, if required - if Ms Reddon declines or so forth - then someone else will be - well, other employees will be asked if they would like to represent - be the representative for all the others.

PN15

THE COMMISSIONER: It is your intention to conduct a review of wages on an annual basis, is that correct, Mr McKibbon?

PN16

MR McKIBBON: Yes, sir. We would like to make sure that we comply with any changes in the awards or wage rates.

PN17

THE COMMISSIONER: Okay. That is fine. Thank you.

PN18

MR TAPPOO: Okay, Commissioner. In terms of clause 15.2, I concede that the word "claim" is perhaps not appropriate considering it is stated to be an entitlement. I confirm that where an employee is ready, willing and able to work on a public holiday, and is normally rostered to work on such public holiday, but the employer doesn't require the employee to work on the public holiday, then they will be entitled to the requisite payment. It is an entitlement, and the clause does say it is an entitlement. But for the purposes of clarity on the public record, I point that out.

PN19

And finally, in relation to clause 21.2 of the agreement, I just confirm for the public record that the meaning of word "settle" in that clause means the Commission has the authority to conciliate and, if necessary, arbitrate disputes about the application of the agreement.

PN20

THE COMMISSIONER: Mr Tappoo, can I take you to clause 17.3 of the agreement.

PN21

MR TAPPOO: Yes, sir.

PN22

THE COMMISSIONER: It is the meal deduction provision. And there is a flat amount of $9.70 for each meal supplied and consumed during the employee's spread of working hours. Firstly, are you aware that the award rate for such a meal is $7.10 for adults and 50 cents for juniors. Can you explain why in this agreement it is the employer's intention to apply a flat figure of $9.70?

PN23

MR TAPPOO: Yes. Firstly, I do note it should be $7.10. My explanation for that would be an error in the drafting of the agreement which I was involved in, so that I take responsibility for. I will just seek - - -

PN24

THE COMMISSIONER: You might need to check the award and satisfy yourself subsequent to these proceedings, Mr Tappoo, that a different rate is applicable to juniors. And, if appropriate, provide me with, say, a replacement page to go into the document that will be published. I doubt that the employees will claim that they are in any disadvantaged because it in fact reduces the employer's deduction from their wages. The employees will be better off if the agreement positions are provided.

PN25

MR TAPPOO: Yes, sir. I agree with that. I will endeavour to check the award and, yes, seek to provide a written undertaking that can be annexed to the agreement that reflects $7.10 rather than $9.70 and the appropriate junior deduction.

PN26

THE COMMISSIONER: That sounds a reasonable way to deal with it, Mr Tappoo, without delaying the further publication of this agreement. I have no other questions in relation to this agreement, but when I'm asked to certify agreements of this nature I offer an opportunity to those representatives of the employees and the employer to ask questions of the Commission in relation to this certification process. So to you, Mr McKibbon, and to you, Ms Reddon, do you have questions of the Commission in relation to this certification process?

PN27

MR McKIBBON: No, Commissioner.

PN28

MS REDDON: No, Commissioner.

PN29

THE COMMISSIONER: Do you understand that my certifying the agreement has the effect of giving the agreement legal force?

PN30

MR McKIBBON: Yes, sir.

PN31

MS REDDON: Yes.

PN32

THE COMMISSIONER: Fine. Thank you. This matter is an application by the employer, Myall Operations Pty Ltd trading as Myall Shores Eco-Tourism Resort and its employees for the certification of an agreement under section 170LK of the Workplace Relations Act. The agreement applies to the operations of the employer at Bomba Point via Bulahdelah in New South Wales. The employer is a constitutional corporation for the purpose of sub-section 170LI(1) and thus the agreement is applicable to a single business, part of a single business or a single place of work for the purpose of sub-section 170L(b) of the Act.

PN33

On the basis of the submissions of the parties, and the statutory declaration provided in accordance with rule 49(2), I'm satisfied that the agreement meets the relevant requirements of section 170LK. I'm also satisfied on what is before me. There are no grounds for refusing the agreement under section 170LT or section 170LU of the Act. I'm satisfied that no organisation of employees notified the employer in writing that it wished to bound by the agreement.

PN34

I've had identified to me those relevant employees referred to in sub-section 170LT(7) and I'm satisfied that those employees were consulted, and were informed of the matters described in sub-section 170LK(7) in an appropriate manner, and that the effects of the terms of the agreement were properly explained to them. Consequently, I will certify the agreement under section 170LT of the Act with effect from today's date, 23 September 2004. And the agreement shall remain in place until 22 September 2007. That concludes the matter and the Commission will adjourn.

ADJOURNED INDEFINITELY [1.08pm]