AG2004/7181, Transcript of Proceedings [2004] AIRCTrans 4318 (8 November 2004)

AUSCRIPT AUSTRALASIA PTY LTD
ABN 72 110 028 825

Level 7, ANZ House 13 Grenfell St ADELAIDE SA 5000
Tel:[phone] Fax:[phone]

TRANSCRIPT OF PROCEEDINGS

O/N 2416

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

DEPUTY PRESIDENT HAMPTON

AG2004/7181

APPLICATION FOR CERTIFICATION
OF AGREEMENT - GREENFIELDS AGREEMENT
(DIVISION 2)

Application under section 170LL of the Act
by Shop, Distributive and Allied Employees
Association-South Australian Branch and Another
for certification of the Australian Liquor
Marketers Distribution and Warehouse Agreement 2004

ADELAIDE

11.17 AM, THURSDAY, 28 OCTOBER 2004

PN1

MR S. BAKER: I appear on behalf of the SDA and as it appears, probably on behalf of the Australian Liquor Marketers also.

PN2

THE DEPUTY PRESIDENT: Very well. Yes, Mr Baker?

PN3

MR BAKER: Thank you, Deputy President. May it please the Commission, both parties by consent present the Australian Liquor Marketers Pty Limited South Australia Enterprise Agreement 2004 to be certified today. The agreement is made pursuant to section 170LL of the Workplace Relations Act referring to Greenfields Agreements. The agreement is between the Shop Distributive and Allied Employees Association and the Australian Liquor Marketers Pty Limited and is accompanied by statutory declarations from Mr Donald Edward Farrell, SDA State Secretary, on behalf of the Shop, Distributive and Allied Employees Association and Mr Brian Mason, State Manager of ALM on behalf of the Australian Liquor Marketers Pty Limited.

PN4

There is a new business being established by the company for the purposes of warehousing and distribution of their product. It is a new business as the company do not currently do this work for themselves, it is in fact contracted out. The new business has its own separate ABN number and does not as yet have any employees. The SDA is an association - or the Shop, Distributive and Allied Employees Association is an association who are entitled to represent the industrial interests of all persons whose employment is likely to be subject by the agreement in relation to work that will be subject to the agreement. With respect to section 170XA of the Act, the award that was used for comparison purposes is the Retail Industry South Australia Award.

PN5

It is our submission that there is no disadvantage to employees with respect to their wages and working conditions. In fact, we feel that there was a 2.9 per cent wage increase each year over 3 years as well as extra entitlements to sick-leave, greater penalty rates and company provided clothing. The agreement was approved by all parties on 21 October 2004 and on this date the application to have the agreement certified was made. The agreement contains procedures for settling disputes. This is found at clause 3.2 and the expiry for the agreement is 31 October 2007, being less than 3 years in duration and that is found at clause 1.6. Accordingly, it is our submission that all statutory requirements are satisfied by the agreement and other documents tendered and therefore we request that the agreement be certified, if the Commission pleases.

PN6

THE DEPUTY PRESIDENT: Mr Baker, just a couple of matters. This has been put forward as a Greenfields Agreement and you have explained that there are no employees, at least at the time of making the agreement. Do you know the time frame for the employment of employees or the practical establishment of the business?

PN7

MR BAKER: Yes. The business will employ employees as of next week, is what I have been informed or possibly mid week and will begin business almost immediately.

PN8

THE DEPUTY PRESIDENT: All right. Now, is this a new facility or is it the fact that the employer is directly employing for the first time?

PN9

MR BAKER: No, this is a completely new facility built on a company's existing land but a new warehouse and new facility.

PN10

THE DEPUTY PRESIDENT: Very well. Now, the award that has been nominated in the statutory declarations is the Retail Industry South Australia Award?

PN11

MR BAKER: That is correct.

PN12

THE DEPUTY PRESIDENT: The award that is drawn into the agreement is the General Store Workers, Packers, Wholesalers, Sellers and Distributors Award. Can you just explain that?

PN13

MR BAKER: That could be an anomaly. We are happy for the store workers award to be the underpinning award for certification for comparison.

PN14

THE DEPUTY PRESIDENT: Yes. Because I must say, Mr Baker, I was surprised to see the retail award nominated in the statutory declarations. Only that without knowing precisely what it was, I understood it to be a warehouse, in which case I thought it would be a bit of a stretch if there were no retail arm there for it to be the retail industry award and in that context, I have prior to the proceedings, considered the proposed agreement in the context of both awards and in particular, the general store workers award.

PN15

MR BAKER: Yes, I take that on notice.

PN16

THE DEPUTY PRESIDENT: Lastly, I point this out, I don't think there is any particular consequence but I do note the agreement as originally contemplated by the parties was to be a section 170LJ rather than a Greenfields Agreement, an LL. I take it that because the agreement is successfully made prior to the employment of any employees, you have just gone ahead with the Greenfields Agreement instead?

PN17

MR BAKER: That is correct and time frame has allowed a Greenfields in this case so we felt it the most appropriate action.

PN18

THE DEPUTY PRESIDENT: Indeed. I do note interestingly enough that there actually seems to be an emphasis on the use of LL where there might be the choice of two because the Act actually indicates that you can't use the alternative form of agreement where the parties are able to make the section 170LL so in which case, what you have done entirely accords with the priority, if you like, within the Workplace Relations Act. Mr Baker, there is only one last point of clarification and that relates to the agreement itself. If I can take you to what I think is page 20, this is the wages schedules. You can see after - this is in 5.4.5, there are the three November dates on the left-hand side and then underneath that, it says, "All levels add on service allowance $30.80."

PN19

Does that mean that in addition to each of the three categories of rates and three operative dates if you like, there is a service allowance to be added of $30.80 to each of those?

PN20

MR BAKER: That is a correct assumption, Deputy President.

PN21

THE DEPUTY PRESIDENT: All right, very well, good thank you, Mr Baker. Look, I will deal with the application now. I do note firstly that whilst obviously made in good faith, I think the statutory declarations are in error in that the appropriate award for the purpose of the no disadvantage test is the General Store Workers, Packers, Wholesalers, Sellers and Distributors Award of the South Australian Industrial Relations Commission and I propose to deal with the application on that basis. Firstly, I am satisfied that circumstances here are such that a section 170LL Greenfields Agreement can be used. I am satisfied that this is a new business and that employees are not yet employed.

PN22

Secondly, I am satisfied that the parties have made an agreement within the meaning of the Act and in particular that the terms of the agreement all pertain to the requisite relationship or are necessary machinery or ancillary provisions to that end within the meaning of the recent High Court decision in what is generally known as the Electrolux case. Thirdly, I am satisfied that the Shop, Distributive and Allied Employees Association is an organisation eligible to enter into the agreement with the employer noting the nature of the employer's business and the constitutional coverage of the union. Lastly, having considered the various statutory requirements for certification, including the no disadvantage test, I am satisfied that the agreement certainly meets the no disadvantage test of the Act.

PN23

Indeed, it is a beneficial agreement which clearly accords with the legislative requirements for certification. In that context, I do note that the agreement is for the full 3 year life under the Act. There might be views as to whether or not a Greenfields Agreement should be made in that context, however, that clearly is an option contemplated under the Act and the fact that some priorities in fact afforded to this form of agreement is indeed clear from the legislation and the agreement clearly is a beneficial agreement. In fact, I think the wage increases that you have alluded to, Mr Baker, are in fact quite conservative, when compared with the safety net award, it is substantially over the award and also of course adopts the 36-hour week amongst other benefits. So in that context I have no hesitation in certifying the agreement.

PN24

So for reasons that I have just alluded to, the Commission will in due course issue an order certifying this agreement pursuant to the Workplace Relations Act 1996. The agreement will come into force on and from today's date. The only reason I hesitate in that respect, Mr Baker, is I note that the parties intend that the agreement continue until 31 October 2007 which means that if it comes into operation today, it is marginally longer than 3 years. I think therefore there are two alternatives. One would be to make the order effective as at 31 October, that is this Sunday and therefore maintain the full effect of 3 years or else have the agreement operate for 3 years from today.

PN25

MR BAKER: The parties would be happy with 31 October, Deputy President.

PN26

THE DEPUTY PRESIDENT: Very well, then the orders the Commission will make will be effective as at 31 October 2004. The agreement will therefore have a full 3 year life from that date. A copy of the orders that the Commission will issue, together with the now certified agreement will be supplied to both parties for your own use and records. Lastly, Mr Baker, I would wish the association and the employer all the best on the new venture and trust that the agreement that I have just certified will stand you in good stead.

PN27

MR BAKER: Thank you, Deputy President.

ADJOURNED INDEFINITELY