AG2004/7994, Transcript of Proceedings [2004] AIRCTrans 4502 (22 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/N3535

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER RICHARDS

AG2004/7994
AG2005/7999

APPLICATION FOR CERTIFICATION OF AGREEMENT

Application under section 170LK of the Act
by Dectra Proprietary Limited for certification of
Sunlover Cruises (Reef Tourism) Certified Agreement 2004

APPLICATION FOR CERTIFICATION OF AGREEMENT

Application under section 170LK of the Act
by Dectra Proprietary Limited for certification of
Sunlover Cruises (Marine) Certified Agreement 2004

BRISBANE

2.15 PM, FRIDAY, 5 NOVEMBER 2004

THIS HEARING WAS CONDUCTED BY TELEPHONE
AND RECORDED IN BRISBANE

PN1

MR T. COOMBS: I'd like to seek the leave of the Commission to appear for Queensland Chamber of Commerce and Industry Limited Union of Employers. And on the phone, Commissioner, I have QUINTON KAESEHAGEN, who I believe was the representative that was before you this morning, and certainly we have two employee representatives, that's DEAN SPENCER and CHRIS MALLIN. Now, there is a general manager of the company who is also waiting for a phone call, too. Quinton, have you got the general manager's number?

PN2

MR KAESEHAGEN: I can get that for you.

PN3

MR COOMBS: Please. Would you mind, Commissioner?

PN4

THE COMMISSIONER: No, that's all right.

PN5

MR KAESEHAGEN: Are you there, Trevor?

PN6

MR COOMBS: Yes.

PN7

MR KAESEHAGEN: 4050-1314.

PN8

THE COMMISSION: And the gentleman's name?

PN9

MR KAESEHAGEN: Mr Terry Russell.

PN10

MR COOMBS: Thanks, mate.

PN11

THE COMMISSIONER: Can we deal with both of these applications simultaneously?

PN12

MR COOMBS: I would hope so, Commissioner, to save time.

PN13

THE COMMISSIONER: The rate is the same, isn't it?

PN14

MR COOMBS: Yes, Commissioner.

PN15

THE COMMISSION: Can I please confirm I have the gentlemen, Mr Mallin, Mr Spencer and Mr Kaesehagen?

PN16

MR KAESEHAGEN: Yes, you do have.

PN17

THE COMMISSION: And Mr Russell?

PN18

MR T. RUSSELL: Yes.

PN19

THE COMMISSION: Thank you.

PN20

THE COMMISSIONER: Good afternoon, everyone now. I've already taken appearances for Mr Coombs who has introduced the other persons who are on the line but we now have Mr Terry Russell, the general manager. Is that the correct title, Mr Russell?

PN21

MR RUSSELL: Managing director.

PN22

THE COMMISSIONER: Managing director, thanks very much. Now, I have two applications here before me, both by the same, if you like, corporate entity, that is, Dectar Proprietary Limited. One is the Sunlover Cruises (Reef Tourism) Certified Agreement 2004, which is AG2004/7994; the second being Sunlover Cruises (Marine) Certified Agreement 2004, which is AG2004/7999. Having examined the documentation in regard to both these agreements, I find that they bear some marked similarities, if I can put it modestly that way. I propose to deal with them simultaneously because of the commonality of issues. Is it appropriate in the eyes of the applicant that I proceed in this manner?

PN23

MR COOMBS: Yes, Commissioner.

PN24

THE COMMISSIONER: Good, thank you for that, Mr Coombs. Mr Coombs, do you have any general submissions to make to start with?

PN25

MR COOMBS: Yes, if I could, Commissioner, and that is that the two documents are before you and we thank you to join both applications this afternoon for easiness, but certainly the two documents have been negotiated with the employees at the workplace. You will find that the two employee representatives are here before you today. You will find their signatures on the back of the document and certainly stat decs and supporting evidence that has been submitted to the Commission, certainly in our mind supports the intent and requirements of the Workplace Relations Act 1996. And, Commissioner, you would probably be aware too that both documents are a superseded model, for want of a better word. They actually supersede two agreements that did apply, not in this Commission, but in the State Commission, form 2000, and certainly you will find that those two have been identified on the front of both documents.

PN26

Commissioner, in terms of what has been submitted today, in terms of - if you wish to make any discussion with the two employee representatives, which we would welcome you to - - -

PN27

THE COMMISSIONER: Well, we have the employee representatives of course for Sunlover Cruises (Reef Tourism) but we don't have them on line for the moment for the Marine certified agreement, do we?

PN28

MR COOMBS: Yes, I think we do.

PN29

THE COMMISSIONER: Do we? Do we have Mr Spencer and Mr - - -

PN30

MR COOMBS: Chris Mallin. Chris Mallin is from Reef Tourism and Mr Spencer is from the other one.

PN31

THE COMMISSIONER: I see, sorry, okay. Well, that - yes, I see how that works now, okay. Right, then, yes, I do have two sets of inquiries. One is, can you just explain to me how the - and perhaps this is a question for Mr Kaesehagen or to Mr Russell, and that is, how was the loaded rate derived? That is, not in terms of the divisors that were used, but the initial quantum of the rate for the purposes of applying the divisor. That is, how did you derive the appropriate rate which you then subsequently divided? I mean, did you - I mean, what elements of the State Award did you take into consideration for the purposes of deriving the initial rate?

PN32

MR KAESEHAGEN: Quinton Kaesehagen, Commissioner.

PN33

THE COMMISSIONER: Yes, Mr Kaesehagen.

PN34

MR KAESEHAGEN: I gave advice to the managing director, Mr Russell, on how to calculate the loaded hourly rate. The loaded hourly rate is based on a 4/2 roster, meaning four days on and two days off, which cycles every six weeks. Therefore, in appreciation of the award, meaning mainly the Master, Mates and Engineering Award, we took the components of a number of ordinary days, Monday to Friday; the number of Saturdays; the number of Sundays, and the number of public holidays that that roster would actually incur, and we applied all of the loadings in accordance with the award to ensure that nothing was left - was unnoticed to the employees state. So that the rate then reflected the award calculations based on that roster. And to that you had - this is the number 2 agreement - is actually added the percentages per year to bring it up to where it is now.

PN35

THE COMMISSIONER: Okay. So you applied all the relevant penalties and so forth available - that would arise over the course of that roster cycle to derive your basic rate.

PN36

MR KAESEHAGEN: Yes, and that gives rise to the sheets attached to the affidavit which shows the number of days worked and the number of hours worked in accordance with the award and therefore a comparison was then drawn between the award and the agreement, and in all cases the agreement is ahead of the award.

PN37

THE COMMISSIONER: Okay, then. Now, was the scope for alteration to that roster such that it alters the benefit to the employee of the loaded rate under the agreement?

PN38

MR KAESEHAGEN: I need to take some advice. It's not known to the company if the roster has ever been changed from a 4/2 roster.

PN39

THE COMMISSIONER: Well, that would be important to me if that's the intention, that the roster is a static one.

PN40

MR KAESEHAGEN: Can I ask Mr Spencer to make comment on that?

PN41

THE COMMISSIONER: Certainly.

PN42

MR SPENCER: What are you talking about, the static roster or a moving roster?

PN43

THE COMMISSIONER: Sorry, I meant that this roster cycle would remain as it is.

PN44

MR SPENCER: I believe the roster cycle would remain four on, two off, for all ..... years. In reference to anybody else that may come on the roster, which may be covered under the EBA, it has been noted that the hours of work will be adjusted to the amount of hours per year that they work, which will give them the correct hours per day for the annual income.

PN45

THE COMMISSIONER: Okay. Look, that satisfies my concerns in that regard, the basic rate, the loaded rate and the manner of derivation is appropriate in these circumstances. My other concern that relates to both these agreements is the content of the notice issued under Section 170LK(2) of the Act. Can I first of all just indicate that the statutory declarations in both applications express a different point of view. That is, in relation to the Marine certified agreement, the statutory declaration by Mr Spencer indicates that paragraph 5.6, the answer being no, that no notice was given to the employees about their rights of representation.

PN46

But the subsequent statutory declaration, which has just escaped me for the minute, says the answer is yes, subject to various explanation, that is the statutory declaration of Mr Russell. Yes, at 5.6 Mr Russell states yes, ticks the yes box. Mr Spencer ticks the no box, but they give - and then the same issue arises in relation to the Reef certified agreement. I get a slight discrepancy between the statutory declarations, although the explanation in both cases is the same. Now, the issue is, I take it then there's just some confusion as to - well, I've looked at the notice that was issued in respect of both agreements, and this was just recently brought in to me on request.

PN47

It indicates to me that whilst the notice under LK(2) was provided, the notice didn't make any reference to the requirements of Section 170LK(4) of the Act, that being the requirements of representation. But it seems to be suggested to me clearly form the statutory declaration that those rights, whilst they were not expressed in the content of the notice, were nonetheless expressed at the time of the briefing of all employees at the time the notice was issued. Now, what I need to know from the parties, is that - am I correct in that summation?

PN48

And secondly, I need to know as much as the parties can tell me about what was said by the relevant person. I presume it was the representative of QCCI at the time - perhaps it was Mr Kaesehagen, at the time that the notice was issued and in the meeting of staff, and in as much detail as possible. The problem we have - well, I suppose it's a problem we all jointly share that the real onus and implication and consequences is on the applicant and not so much me, and that is that there is significant authority in the Commission that a failure to meet the requirements of LK(4) as they apply to the content of a notice that has to be issued in LK(2) can mean that the agreement is not made in accordance with Division 2 of the Act as specified at Section 170LT(1) thereof.

PN49

Now, that said, I'm looking for as much explanation perhaps as Mr Kaesehagen can give me, as to what he said at the time of the conferring with the employees about the making of the agreement that is referred to in the statutory declarations.

PN50

MR KAESEHAGEN: Yes, thank you, Commissioner. Quentin speaking. At the time of discussions and firstly briefing the JCC and subsequently briefing the staff at meetings I normally made reference to a meeting which - a notice which I've drawn up over time and it has the same points as that contained in section 170LK. At this particular company at that particular time we seem to have given the notice out in two parts. In other words, we gave out verbally that Part IV would be covered by giving the full rights to all employees where they could be represented by a union if they wished to be and where that union had the relevant coverage; and then later we did, by writing, inform the employees of the 14 days.

PN51

So when I talked to the JCC I was referring to a piece of paper which has six points: the first point being the name of the employer; the second point being that every employee must have at least 14 days of the intention to make the certified agreement; point 3: that all relevant employees are to have access to a copy of the proposed certified agreement; point 4: the relevant employees who are members of an employee organisation - and I put there in brackets "their unions" - may request to have their interests in relation to the work that will be subject to the proposed certified agreement be represented by those employee organisations.

PN52

And, again, I put down "unions". At point 5: the employer is to give the employee organisation, the union, reasonable opportunity to meet and confer with employees about the proposed certified agreement; and that should the employer make any changes in the 14 days, then the employer must give 14 days' notice, once again. And that's the normal information I give to meetings and/or employee bodies.

PN53

THE COMMISSIONER: Now, was that document handed out, was it?

PN54

MR KAESEHAGEN: No, unfortunately, Commissioner, not the document was handed out.

PN55

THE COMMISSIONER: Was that document read out?

PN56

MR KAESEHAGEN: I would have referred to this document at the JCC meeting, Commissioner.

PN57

THE COMMISSIONER: In that detail that you just indicated?

PN58

MR KAESEHAGEN: I wouldn't have read it as formally. I would have given it in a matter of words but not as a reading, no.

PN59

THE COMMISSIONER: Let's just go to Mr Mallin and Mr Spencer. Mr Mallin and Mr Spencer, the issue here is that the Act requires that you have knowledge of your rights for representation by a union which has coverage of your work place for the purposes of you requesting representation for the purposes of meeting and conferring with the employer about the making of the agreement. Do you share what I think is Mr Kaesehagen's view that those rights, as I just expressed them and as Mr Kaesehagen expressed them verbatim, were clearly communicated to employees, including both yourselves, at the time of the discussions with the work force?

PN60

MR MALLIN: Chris Mallin here. Yes, when we started the JCC discussion program that was made clear to us. It's also the second time we have negotiated the EPA. We negotiated it about four years ago. During that first period there was some union involvement with employees. It's certainly my belief that all employees at Sunlover were aware that if they wished to have union involvement, that was available to them, although we actually managed to reach agreement with management without any assistance from unions.

PN61

THE COMMISSIONER: But are you saying that yourself, but also in your knowledge as the employee representative, the employees about whom you have knowledge appreciated, from what Mr Kaesehagen put to them, and as well from their previous experience, presumably, that they had a right to request a union, which had constitutional coverage of the work place, to represent them in meeting and conferring with the employer about the agreement?

PN62

MR MALLIN: In my case, yes. Of course I am representing diving instructors who tend not to have a union that's very representative for them anyway. It would be one generally used. But certainly my representatives were aware of that. I spoke to them about it at the beginning of the negotiation process.

PN63

THE COMMISSIONER: Good, thank you. Just in relation to - yours is the reef agreement, isn't it?

PN64

MR MALLIN: That's correct.

PN65

THE COMMISSIONER: What was the ballot outcome, again, in your agreement?

PN66

MR MALLIN: The ballot outcome was 36 approving and 5 not approved.

PN67

THE COMMISSIONER: So a substantial majority in support of the agreement.

PN68

MR MALLIN: Yes.

PN69

THE COMMISSIONER: This was a second-generation agreement although it's a migration from the State to the Commonwealth level. Mr Spencer, you followed that conversation. What can you tell me about your experience and what you knew and the employees that you represent knew about their rights for representation?

PN70

MR SPENCER: I believe Quentin explained our right to be represented by a union very clearly. I understood it. The company then relied on myself as a representative to explain it to the people that I represented. I also went to some trouble to explain to the other people in the marine agreement and I believe they all understood that they had the right to be represented by a union if they so chose.

PN71

In deciding with Mr Mallin - and both Mr Mallin and I negotiated the first agreement where I actually contacted several unions and had an outside meeting to have their rights explained and they could make open decisions. So I believe that all the members in the marine agreement were well aware from the information that we received from Quentin, which, I believe - I fully understand that they had every right to be represented by the union.

PN72

THE COMMISSIONER: Good. Thank you for that, Mr Spencer. Mr Spencer, what was the ballot outcome in your agreement?

PN73

MR SPENCER: Ten to two.

PN74

THE COMMISSIONER: Again, a significant majority support for the agreement. And then like the reef agreement, the marine agreement is a second-generation agreement initially at the State level; is that correct?

PN75

MR SPENCER: Yes, that is correct.

PN76

THE COMMISSIONER: Okay. So you're not just coming off the award straight off. Okay. So, Mr Spencer and Mr Mallin, can I also ask you these questions again? In your view, was there any mischief or consequence behind the fact that you did not receive in writing the rights expressed in the Act? Was there any untoward intention or any mischief behind that - the absence of the statements being made in writing and only being provided verbally?

PN77

MR SPENCER: Perhaps. But I'm not sure. But to counter any feeling I may have had I went to a lot of trouble with my research to find out what unions were active and explain these options to the people I represented.

PN78

THE COMMISSIONER: Sorry, when you say "perhaps", what do you mean? Do you think that the employer may have been acting in some untoward manner by not telling you in writing what your rights were?

PN79

MR SPENCER: No, I don't believe that. But I do believe in things in writing - you know, get them in writing. It pays to be very clear. So I chose to be very clear to the people I represented.

PN80

THE COMMISSIONER: Okay. I don't want to put words in your mouth so just to be careful, you are telling me that the fact that there was nothing in writing from the employer about those rights - did that lead you to conclude that the employer was trying to conceal those rights from you?

PN81

MR SPENCER: No.

PN82

THE COMMISSIONER: Okay. Thank you. Mr Mallin, what is your view?

PN83

MR MALLIN: My view is similar. I was certainly well aware of my rights to consult the union official. As I said, I mainly look after the in-water workers; it being a slightly strange way of making a living. There isn't really a good union representation in that part of the industry anyway so I felt more comfortable myself in negotiating our conditions directly with management.

PN84

THE COMMISSIONER: That's all right. My question to you was a bit more precise and that is: the fact that the rights required for representation were not put in writing to you - is there any evidence that you are aware of - that it wasn't put in writing to you was a result of any mischievous intention by your employer to deny you or conceal those rights?

PN85

MR MALLIN: No, I don't feel that. I don't feel they tried to conceal my rights from me; and I was well aware of my rights.

PN86

THE COMMISSIONER: And is that generally so for the persons that you represented?

PN87

MR MALLIN: I believe so, yes.

PN88

THE COMMISSIONER: Good. Thank you for that. In my view, there is some novelty behind the fact that we have here a notice issued under section 170LT(2) of the Act but we do not have in writing any reference to the rights referred to in section 170LK(4) of the Act which are intended to form part of the content of that notice. I nonetheless notice that the Commission's authorities in respect of an issue such as this need to be borne in mind. I notice that in a Full Bench decision - it was reference P3675 and it was entitled Alcan Exploration NL and Others - a Full Bench of the Commission was then dealing with a multi-business or a multi-employer agreement and it found that there was no reference to the rights of LK(4) specified in the notice. And it stated:

PN89

However, at a briefing session held by the employers and the employees of all the three companies that would form part of the multi-employer agreement held on a particular date by way of an overhead projection a copy was made available -

PN90

that the employees were informed in a particular manner of their rights of representation and - that is, the employees were provided with an overhead display of their rights but it did not form part of the written notice that was issued under LT(2). The Full Bench considered that those rights were specified by way of the overhead display but not forming part of the formal notice. And it found that, nonetheless, the employer in that regard had substantially complied with the requirements of the Act and it certified the agreement consequently.

PN91

That authority was subsequently referred to approvingly in a later Full Bench decision of the Commission in Mobile Food Vans which was itself subsequently relied upon and supported in further Full Bench of the Commission in Magnet Mart v Energy Developments. That decision of Mobile Food Vans was commented upon without criticism or demur. I'm also aware that the approach of substantial compliance in considering the totality of the circumstances in any application is relevant to the High Court decision and approach in Project Blue Sky v the ABA.

PN92

I have also considered the Full Bench decisions in SJ Weir Proprietary Limited and Austral Constructions Proprietary Limited and, in my view, those Full Bench decisions are authority for the Commission to have regard to the notice; and the notice is before me and was issued on 8 September 2004 in respect of these two certified agreements; and to consider that notice in the context of all the surrounding relevant circumstances. Well, I have had regard to the notices in respect to these two agreements.

PN93

I have discussed with the employer, but particularly also its representative and the relevant employee representatives, the circumstances surrounding their understanding of their rights, what was said by the employer representative and also the circumstances of the degree of support for the two agreements, as well as the fact that these agreements are second-generation agreements. In considering the notice in each case in relation to both agreements and in also considering the totality of the circumstances relevant to those notices and the agreement-making process generally in respect of those agreements, I conclude that the rights as required to be articulated and provided by way of section 170LK, and Division 2 generally, have been met and that is, in my view, in light of my previous comments, the agreements have been made in accordance with the requirements of Division 2 of the Act as is required at section 170LT(1) of the Act.

PN94

I have more generally discussed with the employer the derivation in structure of the loaded rate. I'm aware, there's a second-generation agreement, a migration from the State to the Federal level. I've considered all the documentation that is before me: the statutory declarations, including the various comparative statements, the agreements themselves, and I conclude that the agreements in both cases meet the requirements of the Act. In both cases, therefore, I certify the agreement to operate from today's date until 26 September 2007, that is, in both cases the agreements - I will just check that the duration date is the same for both agreements. Am I correct in that regard?

PN95

MR COOMBS: 26 September in the marine one, Commissioner, and the same on - - -

PN96

THE COMMISSIONER: Yes. It's the same. Both agreements will operate from today's date through to 26 September 2007. Is there anything else that I need to consider in respect to this matter?

PN97

MR COOMBS: No, Commissioner.

PN98

THE COMMISSIONER: Good. Thank you then, Mr Coombs. We are adjourned. Thank you everyone for participating today.

ADJOURNED INDEFINITELY [2.45pm]