AG2004/6659, Transcript of Proceedings [2004] AIRCTrans 4091 (22 October 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 14261
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER LAWSON

AG2004/6659

APPLICATION FOR CERTIFICATION
OF AGREEMENT

Application under section 170LK of the Act
for certification of the Gray Sub Pty Ltd
Certified Agreement 2004

SYDNEY

12.33 PM, TUESDAY, 12 OCTOBER 2004

THESE PROCEEDINGS WERE CONDUCTED BY WAY OF VIDEO CONFERENCE

PN1

THE COMMISSIONER: Appearances, please.

PN2

MR R. TAPPOO: Thank you and good afternoon, Commissioner, I am solicitor, and on my left here in Sydney is Mr B. THOMPSON, solicitor, and we seek leave to appear for the employer/applicant in this matter. In Perth today we have the gentlemen in the foreground is Mr J. GRAYLING, he is the director of the employer company, and in the background is MS N. CLARK, who is the employee representative.

PN3

THE COMMISSIONER: Thank you, Mr Tappoo, leave is granted for you to appear in these proceedings. The matter before the Commission is an application pursuant to section 170LK of the Workplace Relations Act for the certification of an agreement, the applicants being Gray Sub Pty Ltd, trading as Subway Joondalup and the employees of that employer. Attached to the application was a statutory declaration by the company's director, Mr Grayling, dated 10 August 2004.

PN4

I note that there was no employee statutory declaration, however, I note that all eight employees signed the agreement. You can deal with the application, Mr Tappoo.

PN5

MR TAPPOO: Yes, sir. Commissioner, we would seek to have this agreement which is developed under section 170LK of the Workplace Relations Act certified pursuant to section 170LT of the Act. The agreement is known as the Gray Sub 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 the full understanding and agreement of the valid majority of employees, this majority was ascertained by means of a secret ballot process in which all employees were encouraged to participate and which seven of the eight employees covered by the agreement did so participate by confidentially indicating their approval of the agreement.

PN6

In fact, all seven or 100 percent majority of the employees who cast a valid vote was achieved. All employees subject to the agreement individually received valid notice of intention in accordance with section 170LK2 and 4 of the agreement being made, that all time frames stipulated by the Act were complied with, and that the agreement contains a dispute settlement clause. The employer company operates Subway sandwiches and salad franchisees at Joondalup and Beldon in Western Australia.

PN7

THE COMMISSIONER: So there are two work sites?

PN8

MR TAPPOO: There are two work sites.

PN9

THE COMMISSIONER: That's not what the agreement says, the agreement says there is one work site, there is only reference to Joondalup. However, I note that there were two ballot declarations, one at Joondalup and one at another location called, Beldon. So in fact the agreement is going to apply at two sites, is it?

PN10

MR TAPPOO: Yes, sir, and I apologise for that. Your associate did alert me to this before this in the Form R30 stat dec.

PN11

THE COMMISSIONER: Just before you go on. Mr Grayling, is Beldon another suburban shopping centre in Perth?

PN12

MR GRAYLING: Yes, sir, it is.

PN13

THE COMMISSIONER: Thank you. Go ahead, Mr Tappoo.

PN14

MR TAPPOO: Thank you, sir. 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 and worked to by the employee to those provided by the parameters in clause 16 of the agreement. A comparison of wages paid under the agreement and the award was provided with the application. We submit that this comparison table demonstrates annual financial advantage for employees working under the agreement.

PN15

Now, Commissioner, you and I have discussed various issues you have in relation to these agreements by telephone prior to today's hearing, in fact, prior to the recent matters which were heard on 23 September, and as we have done in the hearings for those matters I would be happy now to categorically discuss those issues one by one now for the purposes of the public record and if there are any additional issues.

PN16

THE COMMISSIONER: You go ahead and do so, Mr Tappoo, save me asking the questions if you have got them all covered.

PN17

MR TAPPOO: Okay, firstly, in relation to clause 3.4 of the agreement, where it says:

PN18

The agreement shall not restrict the ability of the employer to employ casuals under the award. I can confirm that in the unlikely event that casuals are engaged their terms and conditions will be in accordance with the award, and that is it will include the appropriate penalties and loadings.

PN19

Having said that the intention of the agreement is to provide permanent quality employment, the benefits of which are listed in the agreement information sheet submitted with the application as being a more secure employment status, a greater access to investment in skills and training, greater access to legislative protection regarding employment, a notice period for termination or pay in lieu, and an enhanced credit rating to obtain loan finance for example a holiday loan.

PN20

I just confirm that casuals are only likely to be engaged in what are envisaged as emergency situations such a sudden trading spike during the school holidays where increased labour is required for a short period, but the intention of the agreement - - -

PN21

THE COMMISSIONER: I would hardly regard a trading spike as being an emergency, obviously they are predictable, aren't they, is that right?

PN22

MR TAPPOO: Yes, it is predictable in school holidays. In relation to clause 3.3 where it talks about the agreement and its individual employees and the employer to make Australian Workplace Agreements when on becoming effective will replace this agreement totally. Again, these AWAs I just confirm on the public record it is unlikely that the subsequent AWAs will be required. Before I go on I just confirm that the eight employees that executed this agreement were not on AWAs, they were award employees.

PN23

Now the clause, 3.3, the clause was drafted in there because section 170VQ 6A(3) of the Act requires express authority in the terms of any subsequent AWAs to be permitted. But again, I reiterate for the purposes of the public record that it is only in emergency situations where I envisage those emergency situations, if I can use that term, that such agreements will be employed. The intention of the employer is to engage these employees under LK agreement.

PN24

In relation to clause 6.3 of the agreement, I'm sorry, 6.4, I apologise. I just confirm that the company policy is referred to, the company policy documents are in the form of the employee handbooks to be made available to all employees and therefore subject to the requisite public scrutiny, and certainly nothing in a company policy document or in the engagement letter will purport to vary the minimum entitlements of the agreement and the text of 6.4 makes that expressly clear.

PN25

In relation to clause 11, firstly, the issue of junior rates for the supervisory level. I confirm that I have received instructions from my client that junior rates will not apply to the supervisory level in the agreement and this was also confirmed in writing by virtue of a written undertaking pursuant to section 170LV of the Act which was posted to your chambers.

PN26

THE COMMISSIONER: I acknowledge receipt of Mr Grayling's undertaking dated 29 September 2004.

PN27

MR TAPPOO: Thank you, sir. Now in terms of clause 11.4 of the agreement, firstly, I acknowledge that there are no automatic in built wage increases into the text of the agreement. However, there is a compulsory review mechanism, compulsory in a sense that the employer is required by the terms of the agreement to review rates of pay with its employees at least once per annum. The review will be of actual pay rates, any review of legal minimum rates in the agreement could only be by a formal section 170MD variation and I also note the clause - - -

PN28

THE COMMISSIONER: With very great respect, is that going to occur or is this review just a joke.

PN29

MR TAPPOO: It is certainly not a joke, it is a serious review, it is required by the terms of the agreement.

PN30

THE COMMISSIONER: Why will it then require a variation to the agreement?

PN31

MR TAPPOO: I'm just saying that in the event that legal minimum rates are altered, again, I say it is envisaged that the review will be of actual paid rates. You will note that clause 11.3 says that the employer may agree to pay higher rates than the minimum rates, and that's also a matter of course pursuant to the Act, but the review will be of actual paid rates and increases will be of the actual paid rates.

PN32

THE COMMISSIONER: That will take into account CPI factors and also any movements in the State wages.

PN33

MR TAPPOO: Correct, sir, okay. In relation to clause 15.2 of the agreement I acknowledge that the word claim in the first sentence of that clause is perhaps not appropriate considering it is stated to be an entitlement and I can confirm that where an employee is ready, willing and able to work on a public holiday and is normally rostered to work on that public holiday but the employer does not require that employee to work on that public holiday then they will be entitled to payment as an entitlement, and the clause does say it is an entitlement, but just for the purposes of clarity I point that out in the public record.

PN34

In relation to clause 21.2 of the agreement, I just confirm on the public record that the word, settle, in relation to settling disputes in clause 21.2 has the same meaning as section 170LW or question 6.6.2 of the former stat dec, that is, it means that the Commission has the authority to conciliate and if necessary arbitrate disputes about the application of this agreement. That concludes my submissions, sir, I'd be happy to address any further issues.

PN35

THE COMMISSIONER: I have a couple of other matters. Clause 6.3 of the agreement, can you go to that.

PN36

MR TAPPOO: Yes, sir.

PN37

THE COMMISSIONER: 6.3 of the agreement empowers the employer to require employees to work at other sites from time to time. What is meant by those words, other sites.

PN38

MR TAPPOO: I'll just confirm that other sites means sites operated by the employer.

PN39

THE COMMISSIONER: Other than Joondalup and Beldon?

PN40

MR TAPPOO: At this stage it is Joondalup and Beldon, and what it means that an employee who is normally regularly rostered to work at Joondalup may be required to also work at Beldon from time to time and vice versa.

PN41

THE COMMISSIONER: Is that understanding of those words, Mr Grayling?

PN42

MR GRAYLING: Yes, sir, it is.

PN43

THE COMMISSIONER: What you would transfer the employees between the two retail outlets.

PN44

MR GRAYLING: Yes, sir, I do, they are about 10 minutes apart.

PN45

THE COMMISSIONER: Right, that was my next question, thanks. Mr Tappoo, can you explain the difference in the dates between the valid majority which is said in Mr Grayling's statement to have been achieved on 2 August and the dates of the ballots according to the returning officers and you say the ballots were conducted on the 26th at one site and on 1 August on the second site. Also that it is between those dates and the dates of the signatories, the dates that are in the agreement, vary again between the 28th of July and the 1st of August.

PN46

MR TAPPOO: Yes, I just confirm that the main acceptance of the agreement was through the secret ballot process where employees confidentially indicated their approval. However, they were invited subsequent to the ballot in each case to indicate, to sign off the agreement, to just to confirm their acceptance. But I confirm that the actual acceptance is through the ballots.

PN47

THE COMMISSIONER: So you are saying then that the valid majority, or the agreement was actually made the following day on 2 August when Mr Grayling signed the agreement.

PN48

MR TAPPOO: Yes, Sir.

PN49

THE COMMISSIONER: Okay, thank you for those submissions, Mr Tappoo, you have dealt with all the matters that were of concern to me. Now for your benefit, Mr Grayling and Ms Clark, when I'm asked to certify agreements of this nature which agreements not involving an organisation of employees I give those representatives of the employer and the employees an opportunity to ask questions of the Commission about this certification process. So do you have any questions in relation to this certification process. Mr Grayling?

PN50

THE COMMISSIONER: Ms Clark?

PN51

MS CLARK: No, I don't, sir, thanks.

PN52

THE COMMISSIONER: Okay, do you both understand that my certifying the agreement gives it legal force.

PN53

MR GRAYLING: Yes, I do.

PN54

MS CLARK: Yes, sir.

PN55

THE COMMISSIONER: Thank you. This matter is an application by Gray Sub Pty Ltd, trading as Subway Joondalup, and Subway Beldon, and the employees of the employer for the certification of an agreement under section 170LK of the Workplace Relations Act 1996. The agreement applies to the operation as the employer of those two main sites. The employer is a constitutional corporation for the purposes of subsection 170LI(A) and thus the agreement is applicable to a single business, part of a single business or for a single place of work for the purpose of section 170LB of the Act.

PN56

On the basis of the submissions of Mr Tappoo and the statutory declaration filed in accordance with rule 49(2) I'm satisfied that the agreement meets the relevant requirements of section 170LK. I'm also satisfied with what is before me that there are no grounds for refusing the agreement under section 170LT or 170LU of the Act. I'm satisfied that no organisation of employees notified the employer in writing that it wished to be bound by the agreement. I've had identified to me those relevant employees referred to in subsection 170LT(7), and I'm satisfied those employees were consulted and were informed of the matters described in subsection 170LK(7) in an appropriate manner and that the effects of the terms of the agreement were properly explained.

PN57

Consequently, I'll certify the agreement under section 170LT of the Workplace Relations Act with effect from today's date, 12 October 2004, and the agreement shall remain in force until 11 October 2007. That concludes the matter and the Commission will adjourn.

ADJOURNED INDEFINITELY [12.48 pm]