AG2004/6712, Transcript of Proceedings [2004] AIRCTrans 4440 (16 November 2004)

AUSCRIPT AUSTRALASIA PTY LTD
ABN 72 110 028 825

Level 10, 15 Adelaide St BRISBANE Qld 4000
(PO Box 13038 George Street Post Shop Brisbane Qld 4003)
Tel:[phone] Fax:[phone]

TRANSCRIPT OF PROCEEDINGS

O/N3534

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER RICHARDS

AG2004/6712

APPLICATION FOR CERTIFICATION
OF AGREEMENT

Application under section 170LK of the Act
by Packapigs Pty Ltd trading as Hogs Breath
Cafe Cleveland for certification of Packapigs
Pty Limited - Certified Agreement 2004-2007

BRISBANE

11.07 AM, FRIDAY, 5 NOVEMBER 2004

PN1

MR D. D'ARCY: If the Commission pleases, I seek leave to appear on behalf of Packapigs Pty Ltd. I have with me MR J. GRIFFIN.

PN2

THE COMMISSIONER: Thanks, Mr D'Arcy. Do you want to make some general submissions to me in support of the application?

PN3

MR D'ARCY: Certainly. Initially, Commissioner, if I can hand up new copies of the applications themselves. I understand between the time of filing there was a new form. There is originals plus two copies and a form 30, which the registry requested.

PN4

THE COMMISSIONER: Sorry, can you just explain to me what this is about again.

PN5

MR D'ARCY: There was a request from the registry that because there had been a slight alteration, I believe, in terms of the application form.

PN6

THE COMMISSIONER: You mean, the format of the statutory declaration?

PN7

MR D'ARCY: Yes.

PN8

THE COMMISSIONER: Yes. That's right from August 27 the forms changed.

PN9

MR D'ARCY: We filled out the previous form but we have now done or I suppose complied with the new form requirements.

PN10

THE COMMISSIONER: Okay, then. Yes, they are all downloadable from the internet. Okay, well, let's proceed. Now I have those on file.

PN11

MR D'ARCY: There are affidavits of both Mr Dilizia and also Mr Winklemen who is the national operations manager for Hogs Breath in relation to this agreement. They to go meeting requirements of the Act. There was an information session held on 5 September at that meeting also. Mr Chris Agnew from our office attended and there was also given the notice of intention to conduct ballot in writing. Mr Dilizia was elected employer representative by a show of hands. There was a ballot conducted I believe on 24 September. Sorry, 14 September, Commissioner. The document itself, Commissioner, allows for wage increases. There is a national - the increases are three percent. However, if there are national wage case decisions in excess of that then those wages increases will be incorporated into the document.

PN12

I also should indicate that they are loaded rates and the document itself envisages employing part time employees only. So, all the employees at Hogs Breath Cleveland are employed part timers. There are no casuals. There is a facility for full time employees as well.

PN13

THE COMMISSIONER: Does the agreement specify that it will essentially track future wage increases?

PN14

MR D'ARCY: Yes, it does, at 3.2.4.

PN15

THE COMMISSIONER: 3.2.3, isn't it. Yes, it overlaps the page 11 to 12. Yes, I see it's a carry over there, sort of an adjunct 3.2.3.

PN16

MR D'ARCY: Commissioner, there also is an ability for employees to ask or request for a reconciliation in relation to their wages.

PN17

THE COMMISSIONER: This is clause - - -

PN18

MR D'ARCY: It's appendix two page 29. There is, as you can see, Commissioner, in relation to point five there is a table there. Those are the nominal hours which the restaurant seeks to have employees work, which is how the loaded rates are calculated at 11.44 percent over and above the award rates and those are the rates, or those are the nominal rostered hours that an employee would work across a period of a year. They have the ability to ask for a reconciliation against the award if they are worse off and we suggest they won't be based upon their rosters but if they are worse off then they will be compensated up to that amount. So effectively, it's a fail safe clause in relation to employees entitlements to meet the no disadvantage test, if it pleases.

PN19

THE COMMISSIONER: Just looking at appendix two, paragraph one, in the last sentence thereof. It states that:

PN20

Provided that any comparison will use the hours of work as set in this agreement for the particular employment award status of the employee.

PN21

What does that mean?

PN22

MR D'ARCY: Commissioner, it looks at the hours of work clause in terms of applying the award conditions so at part four of the agreement in terms of the hours of work, for example, there is a minimum for a full time employee of a two hour shift. So in the award and if the minimum is a six hour or whatever that minimum is, then it would be taken that it would be a two hour for the purposes of the entitlement because the rostering - - -

PN23

THE COMMISSIONER: So it uses the hours you work under the agreement but applies the rates under the award.

PN24

MR D'ARCY: That's right. Primarily, though, Commissioner, because there may be circumstances where the minimum shift engagement is one of them, where the restaurant in good faith rosters merely just the two hours but minimum engagement is an employee works for two hours or accepts a shift for two hours, the minimum engagement is higher than that and necessarily there would be further payments due under the award in those circumstances.

PN25

THE COMMISSIONER: Just a question at paragraph 3(b). It states that you wouldn't make up the disadvantage against the award if the employee had requested hours that took them below the award rate.

PN26

MR D'ARCY: Yes, Commissioner.

PN27

THE COMMISSIONER: Yes. I am just wondering how you can have an agreement that allows an employee to opt out from the agreement, in effect, and accept rates of pay below the award.

PN28

MR D'ARCY: Obviously, Commissioner, the situation with it relies particularly upon the weekend hours and the late work hours underneath the particular state restaurants award. If an employee mightn't want to work for their own personal reasons those unsociable hours, all the clause indicates is that if there is a request that they wish to work all the unsociable hours, then they are obviously made aware of the loadings and also the type of hours that normal roster for a normal employee would provide. But however, if you are doing majority hours and you have requested those majority hours, then the agreement considers that the employee has agreed to opt out of the agreement for the purposes of the reconciliation or the review of hourly local rates clause.

PN29

Commissioner, we see it no different, I suppose from, you know mutual agreement in writing to other such things as expansion in hours of work and arrangements of that nature. Our commitment effectively, to the employees by including the review of hourly loaded rate in there is not only just for the satisfaction of the Commission but to show employees what general rosters they should be working in terms of percentage of time they should be doing public holidays, Saturday and Sunday, in proportion to Monday to Friday work.

PN30

THE COMMISSIONER: Yes, the issue here is that it's at the employer's direction though is it? It can only be at the employee's request and not at the employer's direction.

PN31

MR D'ARCY: That's correct.

PN32

THE COMMISSIONER: Yes, there is still a question it poses as to whether or not you can have an agreement that permits an employee to effectively opt out from it and by so opting out form it, be paid less than they would have been paid under the award and whether or not it should be done by some other instrument. But as you say it's at the initiative of the employee for the purposes of suiting their particular needs. Is it in your experience a particularly common phenomenon?

PN33

MR D'ARCY: No, Commissioner, but the issue, I suppose is this. Is that, if the employee - we could roster - what the employer has done is had a look at the ability in relation to what the rostering requirements are. That is what the provided rate is based around. We could roster quite satisfactorily people across the whole of the year based upon the rostering requirements we have and the basis of calculation for the hourly rates for the Cleveland store. However, what we want to avail people of is part time employment and as much employment as they want. So, we really are giving people an extra option that's not always behest and it doesn't suit us or doesn't give us any extra or added benefit but gives the employee the added benefit of picking up the additional hours.

PN34

THE COMMISSIONER: I take your point and I take the point generally that - and partly I have made up myself - that one is at the initiative of the employee and it's at the initiative of the employer for the purposes of meeting the employee's interests and not the employer's interests. It's a phenomenon which you have stated which is not particularly common at all and in your submission that it assists other forms of work such as part time work and accommodates that work in an appropriate spread of hours to meet the employee's interests and that then maximises employment.

PN35

I note all of that and I nonetheless still note that there is a technical issue at the foot there about how an employee may effectively opt out from the agreement and attract a rate of pay that is less than they would have earned under the award, but nonetheless, I am of the view that the occasions in which it would occur are limited. It is at the employee's initiative only and not at the direction of the employer and there are substantial employment benefits accruing in terms of the potential for more part time work and to accommodate that part time work in a convenient manner for the employee and as a consequence I am not satisfied that the existence of this clause would be detrimental to the requirements of the no disadvantage test or the requirements - and may indeed, in my view, satisfy the requirements of section 170LT(3) and (4) of the Act.

PN36

That is, despite there being a contravention of the no disadvantage test, the agreement being able to be certified as not being contrary to the public interest for the reasons that I have given. That said, I have now examined the issues which I had highlighted from the documentation that's before me for the purposes of reaching a conclusion as to whether or not the agreement should be certified. I am satisfied the agreement should be certified and has met the requirements of the Act and to be made in conforming with the rules of the Commission. I apologise, had you submitted additional sets of documentation, I would have nonetheless have permitted you to have worked off the old statutory declarations for reasons that you had met the requirements of that statutory declaration by providing me copies of the notice and so forth but we have made a contribution to the paper production industry, I suppose.

PN37

But that said, I certify the agreement to operate from today's date through to the normal expiry date being 1 August 2007. We are adjourned, thank you.

ADJOURNED INDEFINITELY [11.20am]