AG2004/8026, Transcript of Proceedings [2004] AIRCTrans 4995 (21 December 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 15667

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER LAWSON

AG2004/8026

APPLICATION FOR CERTIFICATION
OF AGREEMENT

Application under section 170LK of the Act
by KHA Investments Proprietary Limited
trading as Oporto for certification of the
KHA Investments Proprietary Limited - New
South Wales Employees - Certified Agreement
2004-2007

SYDNEY

10.25 AM, FRIDAY, 10 DECEMBER 2004

PN1

MS T. LO: Good morning, Commissioner, solicitor, I seek leave to appear.

PN2

THE COMMISSIONER: Thank you, Ms Lo, and who is appearing with you today, Ms Lo?

PN3

MS LO: Commissioner, to your left is employer representative, MR J. AZZI, and to your right there are two employee representative, one of them is MR S. BOONIVEDDY, and MR V. WEERATUNGA.

PN4

THE COMMISSIONER: Thank you, Ms Lo. Leave is granted, Ms Lo. The matter before the Commission is an application filed pursuant to section 170LK of the Workplace Relations Act for the certification of an agreement between the company, KHA Investments Proprietary Limited and the employees of that company. The proposed agreement applies to operations of the employer, KHA Investments Proprietary Limited trading as Oporto North Sydney and Oporto Bondi Junction.

PN5

Attached to the application were statutory declarations by Mr Azzi, dated 11 November 2004 and one each from Mr Weeratunga and another from Mr Booniveddy dated 12 November 2004. Will you deal with the application, Ms Lo?

PN6

MS LO: If the Commissioner pleases I would like to rely on the stat dec of the employer rep and the employee reps, in addition to other submissions we made today. I would like to set out first of all the key reductions and benefits of the EBA which are set out in the comparison document attached to the stat decs marked annexure D. The key reductions, I refer to clause 3.2.1 of the agreement. Under this clause employees are paid at a loaded hourly rate which encompasses relevant penalties such as weekend penalty, late night penalties and annual leave loading.

PN7

I have already posted a copy of the wage comparison to you, Commissioner, that overall there's only one employee of the company will be disadvantaged and overall employees passed non-advantage test. Commissioner, I would like to refer you to clause 3.2.1, under the table we consider that is no casual employees under the EBA.

PN8

THE COMMISSIONER: 3.2.1 of the agreement, or of the stat dec.

PN9

MS LO: Of the agreement, my apologies.

PN10

THE COMMISSIONER: Of the agreement proper.

PN11

MS LO: And under this agreement all employees are either part time or full time employees which guarantee their hours and employment of employees and subsequently every single one of them is entitled to accrued annual leave, sick leave, carer's leave and superannuation if they earn more than $450 per month. This document - - -

PN12

THE COMMISSIONER: I note that the statutory declaration sets out that there are 21 casuals and you told me now that there is - the agreement only applies to part time employees.

PN13

MS LO: Yes, under the statutory declaration before the enactment of this EBA all employees were initially employed as casuals. As soon as this agreement comes in to force all employees will be employed as permanent part time or full time employees.

PN14

THE COMMISSIONER: Thank you.

PN15

MS LO: I would like to indicate to you, Commissioner, this document is very easy to read as some of the employees are either overseas students who may have limited English language ability, or under 18 year old employees are junior employees. So for them it is relatively easy as opposed to the award. I would like to refer you to clause 3.2.4 of the agreement, Commissioner. Under clause 3.2.4 a guarantee pay increase of 2.5 per cent is provided for the next 2 nominal years on 28 September 2005 and 2006. If the National wage case decision, each year of the operation provides a higher award rate increase then the proposed agreement will match that.

PN16

THE COMMISSIONER: So that will be the National Wage Case as it is applied to the relevant parent award?

PN17

MS LO: Yes, if their wage rate - - -

PN18

THE COMMISSIONER: Those increases will apply if it exceeds 2-1/2 per cent on each of those two anniversary dates?

PN19

MS LO: Yes, yes, Commissioner. If I can refer you to appendix 2. As indicated earlier, this agreement provides the hourly test. So under the appendix 2 which sets out the parameters of hours by which the employees will be rostered and if they work outside of this parameters of hours the hourly test will be triggered and hourly test is provided under clause 3.2.5 of the agreement.

PN20

Commissioner, I would like to refer you to clause 3.1.3 which enables the employees after 6 months - after the initial period of up to 6 months of employment if deemed proficient they will be promoted from introductory to proficient job category.

PN21

THE COMMISSIONER: That is after 6 months, is it?

PN22

MS LO: Yes, yes. I would like to draw attention to clause 3.4.1 of the agreement which provides that employees undertaking a recognised traineeship will be paid the same loaded hourly rates of pay as indicated in clause 3.2.1 rather than the National wage case - sorry, National training wage award. So relatively they will be paid at a higher rate than the National training wage.

PN23

THE COMMISSIONER: So the agreement rates of pay apply at all times whether they are undertaking formal trainee - training in accordance with the traineeship?

PN24

MS LO: Yes, Commissioner, and also clause 4.3.3 of the agreement provides that, at least, 24 hours notification of change of rosters must be given to all employees and the award, on the other hand, does not provide for such notification. There's no such requirement on the part of the employer under the award and I would like to refer you to clause 5.1 of the agreement which sets out that the annual leave of the employees will be calculated at a 33.3 per cent higher rate of pay as set out in clause 3.2.1.

PN25

THE COMMISSIONER: Sorry, just repeat that, annual leave?

PN26

MS LO: Yes.

PN27

THE COMMISSIONER: How is it calculated?

PN28

MS LO: It is calculated - well, they are accrued, 150 hours of annual leave and this accrued annual leave will be calculated on the basis of their loaded hourly rates of pay under 3.2.1.

PN29

THE COMMISSIONER: So if an employee takes annual leave they will be absent from work, but they won't receive separate annual leave pay?

PN30

MS LO: Yes, they - - -

PN31

THE COMMISSIONER: The loaded rates of pay will already accommodate and - - -

PN32

MS LO: It won't cover the annual leave loading, because that is already loaded in the actual loaded hourly rates of pay.

PN33

THE COMMISSIONER: Right.

PN34

MS LO: However, they will accrue statutory entitlement, such an annual leave and they will be able to cash in any unused accrued annual leave under clause 5.1.7 if they can provide evidence to the company that they suffer from financial hardship then they will be able to cash in the accrued annual leave, or outstanding annual leave.

PN35

Commissioner, this agreement also provides for staff discounts for food and beverage under clause 6.1.1. So under this clause the employees are entitled to 50 per cent off on all on the menu price before commencement or after completion of their roster, or 20 per cent off when they are not on a rostered shift. That is my submission.

PN36

THE COMMISSIONER: That is all?

PN37

MS LO: Yes, Commissioner. Just that I would like to just add to one more thing. In terms of the agreement, there are over 20 similar type of agreements that has been approved before the Commission.

PN38

THE COMMISSIONER: Twenty?

PN39

MS LO: Over 20 I think.

PN40

THE COMMISSIONER: I know I've done quite a lot of them.

PN41

MS LO: Yes, you have, Commissioner. I thought I would just point that out to you, if it please, thank you.

PN42

THE COMMISSIONER: All right, thank you, Ms Lo. To you, Mr Azzi, and to the employee representatives, when I'm asked to certify agreements of this nature I give you the opportunity of asking any questions of the Commission in respect of this certification process. So do you have any questions of me about this certification process?

PN43

MR AZZI: No, Commissioner.

PN44

THE COMMISSIONER: No, do you understand it?

PN45

MR AZZI: Yes.

PN46

THE COMMISSIONER: Gentlemen, do you understand it?

PN47

MR BOONIVEDDY: Yes.

PN48

THE COMMISSIONER: And do you think your fellow employees understand the agreement?

PN49

MR BOONIVEDDY: Yes.

PN50

MR WEERATUNGA: Yes, they do.

PN51

THE COMMISSIONER: Do you understand that by certifying this agreement, gives the agreement legal force?

PN52

MR BOONIVEDDY: Yes, sir.

PN53

THE COMMISSIONER: Mr Azzi?

PN54

MR AZZI: Yes, Commissioner.

PN55

THE COMMISSIONER: You understand that, fine, all right. Thank you, gentlemen. This matter is an application by the employer, KHA Investments Proprietary Limited and the employees of KHA Investments Proprietary Limited for the certification of agreement under section 170LK of the Workplace Relations Act 1996. The agreement applies to the operations of the employer at North Sydney and at Bondi Junction. The employer is a constitutional corporation for the purpose of subsection 170LI(1) and thus the agreement is applicable to a single business, part of a single business, or a single place of work for the purposes of subsection 170LB of the Act.

PN56

On the basis of the submissions of Ms Lo and the statutory declarations submitted in accordance with rule 49(2) I'm satisfied the agreement meets the relevant requirements of section 170LK. I'm also satisfied on what is before me, there are no grounds for refusing the agreement under section 170LT or section 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.

PN57

I have had identified to me those relevant employees referred to in subsection 170LT(7) and I'm satisfied that 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. Consequently, I will certify the agreement under section 170LT of the Act with effect from today's date, 10 December 2004 and the agreement shall remain in force until 1 July 2007. That concludes the matter and the Commission will adjourn.

ADJOURNED INDEFINITELY [10.40am]