AG2004/7950, Transcript of Proceedings [2004] AIRCTrans 4562 (24 November 2004)

AUSCRIPT AUSTRALASIA PTY LTD
ABN 72 110 028 825

Level 4, 179 Queen St MELBOURNE Vic 3000
(GPO Box 1114 MELBOURNE Vic 3001)
Tel:[phone] Fax:[phone]

TRANSCRIPT OF PROCEEDINGS


O/N 9076

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

DEPUTY PRESIDENT IVES

AG2004/7950

APPLICATION FOR CERTIFICATION
OF AGREEMENT

Application under section 170LK of the Act
by Danyo Holdings Pty Ltd t/a Arthur Robinson
Plumbing for certification of the Arthur
Robinson Plumbing Certified Agreement 2004-2007

MELBOURNE

2.03 PM, MONDAY, 15 NOVEMBER 2004

THIS HEARING WAS CONDUCTED BY VIDEO LINK AND RECORDED IN MELBOURNE

PN1

MR B. SHAW: I seek leave to appear for the applicant company?

PN2

THE DEPUTY PRESIDENT: Yes, thank you. Yes, go ahead, Mr Shaw.

PN3

MR SHAW: Your Honour, the matter has been applied for. The agreement was made and there is a statutory declaration which in my submission complies with the requirements of the Act. The issue becomes one of dealing with the no disadvantage test, because clearly in this agreement at clause 6.3, overtime, and in particular it provides that overtime is paid at time and a half for all time, as against an award standard of time and a half for the first hour on a daily basis, and on Saturdays, and double time thereafter. I have put in some written submissions, and I believe they have been filed, which have appended to them an exhibit which I have marked BS1 and which is a spreadsheet which sets out the calculations and the method of using those calculations is set out in the written submissions.

PN4

In a summary in order - on the average overtime worked by employees in the company, to ensure that they are not disadvantaged by the reduction in overtime rates, an over award payment component of 8.95 per cent is required and in fact the agreement at clause 5.1.2 I think - sorry, there is a fan in this room and it is blowing my papers around - yes, 5.1.2 provides for a 9 per cent over award payment.

PN5

THE DEPUTY PRESIDENT: Yes, Mr Shaw, just before you go on I note that you have used for your calculations in BS1 the average overtime of the existing employees. Is it your position that any new employee would work no more than the average employees - sorry, the average overtime worked by the existing employees?

PN6

MR SHAW: Yes, it is, your Honour.

PN7

THE DEPUTY PRESIDENT: Thank you.

PN8

MR SHAW: In fact you will see that the over award payments for the existing employees is in all cases well in excess of the 9 per cent in event, but the agreement obviously has to pass the test as though it was dealing with new employees and we submit that it does pass the test on that basis. Now, unfortunately when BS1 was being prepared, and when I first saw it as provided by my client, I noticed the unfortunate inescapable fact that the agreement had 5.1.2 provide for a 2 per cent over award payment for apprentices - - -

PN9

THE DEPUTY PRESIDENT: Yes.

PN10

MR SHAW: - - - and apprentices in fact by, as I have said on BS1, really ought to be getting an over award component of - I think it is 4.98 per cent. I just can't place my eyes on it right now.

PN11

THE DEPUTY PRESIDENT: That is based upon the average calculation that you have incorporated in the BS1?

PN12

MR SHAW: Yes, that is correct.

PN13

THE DEPUTY PRESIDENT: Yes.

PN14

MR SHAW: Yes, 4.46 per cent is what the overall payment would have - - -

PN15

THE DEPUTY PRESIDENT: Would need to be to - I am sorry to interrupt you again, but what you are saying now is in respect of the apprentices, in order for the apprentices not to be disadvantaged, based upon the average hours of overtime worked by apprentices, they would need to be getting an above award payment of a minimum of 4.46 per cent.

PN16

MR SHAW: 4.46 per cent.

PN17

THE DEPUTY PRESIDENT: Yes. And the agreement allows for 2 per cent.

PN18

MR SHAW: That is correct, so inasmuch as that is the case I have to concede the agreement would fail the no disadvantage test.

PN19

THE DEPUTY PRESIDENT: Yes.

PN20

MR SHAW: As I have put in the written submissions I have spoken to my client about this and my client is prepared to give a written undertaking rather than to have to go back and do all this again - - -

PN21

THE DEPUTY PRESIDENT: Yes.

PN22

MR SHAW: - - - pursuant to section 170LV(1)(a) of the Act that apprentices will not be disadvantaged as compared with the award in any circumstances.

PN23

THE DEPUTY PRESIDENT: Yes, well, that - an undertaking of that nature would be acceptable as far as the Commission is concerned, Mr Shaw, provided it says something to the effect of notwithstanding the provisions of 5.1.2.

PN24

MR SHAW: Yes, I will ensure that it is worded that way, yes.

PN25

THE DEPUTY PRESIDENT: Yes. That the employer will ensure that no apprentice will be disadvantaged vis-a-vis the award, something like that.

PN26

MR SHAW: Yes, yes.

PN27

THE DEPUTY PRESIDENT: Yes.

PN28

MR SHAW: Now, subject - apart from that the agreement is simply an over award agreement. It is obviously quite different from the pattern agreement but it is an over award agreement and, therefore, we submit it passes the no disadvantage test and it doesn't contain any provisions that are offensive to 170LU of the Act or 170LT.

PN29

THE DEPUTY PRESIDENT: Yes, I just wonder, Mr Shaw - it is a matter for yourself and your client in this circumstance - but I wonder just from the point of view of saving - perhaps saving administrative work, whether it may not be better to have a provision in respect of apprentices which nominated a percentage figure - above award figure rather than simply said not disadvantaged in respect of the award, because that latter course would require calculations to be made on an ongoing basis, dependent on what apprentices worked, what hours, when, whereas if we were to look at it on a similar basis to the tradesmen and said, for example, 5 per cent, which it then saves some administrative work. As I say, that is a matter for you and your client but that might be a preferable course.

PN30

MR SHAW: Well, I am happy and indeed my client is happy to actually include in the undertaking that it will indeed take steps to amend the agreement accordingly. It was just we were trying to avoid going back and doing it again. Obviously it still gets done again in the sense that the - that we are doing it again for the start of a certified agreement, I have - not that the Commission is a place of precedent, of course, but have done that once with an earlier LK agreement which was certified by Senior Deputy President Williams that had a problem with - really was simply a drafting error in that case but it certainly had a problem with compliance with the Act and in respect of no disadvantage and the appropriate undertaking was given and the agreement was subsequently varied.

PN31

THE DEPUTY PRESIDENT: Yes, I am not sure that from my perspective at least, Mr Shaw, I see why a variation to the agreement would be necessary, given that what we are dealing with here is a mechanism by which the Commission can be satisfied that no employee whose employment is covered by the agreement is disadvantaged. It would seem to me at least prima facie that an undertaking that said words to the effect of notwithstanding the provisions of 5.1.2 as they apply to apprentices, the employer agrees that - or undertakes to provide a 5 per cent above award - - -

PN32

MR SHAW: I am sorry, your Honour, you are ahead of me.

PN33

THE DEPUTY PRESIDENT: Yes.

PN34

MR SHAW: I think that is indeed a much more sensible approach.

PN35

THE DEPUTY PRESIDENT: Yes.

PN36

MR SHAW: And I have no difficulty, having discussed the shortfall with my client, giving that undertaking on its behalf.

PN37

THE DEPUTY PRESIDENT: Yes. As I say, it is a matter for you but it just seems to me that it saves the employer having to go through a mathematical calculation all of the time that the agreement is in force in respect of apprentices, that is all.

PN38

MR SHAW: Yes.

PN39

THE DEPUTY PRESIDENT: Yes. All right. Is there anything further, Mr Shaw?

PN40

MR SHAW: I have got nothing further, your Honour.

PN41

THE DEPUTY PRESIDENT: Well, I am satisfied subject to the undertaking that has been discussed with respect to wage rates to be paid to apprentices, that the - based upon the materials provided and the submissions by Mr Shaw, that the agreement complies in all relevant respects with the requirements of the Act. On that basis I can indicate - and again subject to the receipt of the written undertaking - that the Arthur Robinson Plumbing Certified Agreement 2004-2007 will be certified. The date of that certification will be on receipt of and on my being satisfied with the terms of the undertaking provided by the employer.

PN42

MR SHAW: Thank you, your Honour.

PN43

THE DEPUTY PRESIDENT: Have you any idea, Mr Shaw, when you would likely be able to have that undertaking provided?

PN44

MR SHAW: I will be able to fax it to the Commission either this afternoon at the worst tomorrow morning and put a hard copy in the mail at the same time. I imagine you are aware I am in Townsville right now so mail will take a couple of days to get there.

PN45

THE DEPUTY PRESIDENT: Yes.

PN46

MR SHAW: But I will certainly have it faxed to you not worse than tomorrow.

PN47

THE DEPUTY PRESIDENT: Yes. In the unlikely event, Mr Shaw, that the Commission has any concerns arising from the undertaking itself, presumably you would want us to contact you directly?

PN48

MR SHAW: Yes, and the Commission can ring my Melbourne chambers number and it diverts to where I am.

PN49

THE DEPUTY PRESIDENT: Yes. All right. Thanks, Mr Shaw.

PN50

MR SHAW: Thank you.

PN51

THE DEPUTY PRESIDENT: On that basis I will adjourn.

PN52

MR SHAW: Thank you, your Honour.

ADJOURNED INDEFINITELY [2.15pm]