AG2004/1275, Transcript of Proceedings [2004] AIRCTrans 686 (19 February 2004)

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TRANSCRIPT OF PROCEEDINGS


O/N 6069
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

DEPUTY PRESIDENT HAMILTON

AG2004/1275

APPLICATION FOR CERTIFICATION
OF AGREEMENT

Application under section 170LK of the Act
by Ferguson Plarre Bakehouses Pty Limited
for certification of The Ferguson-Plarre
2003 Certified Agreement

MELBOURNE

3.07 PM MONDAY, 9 FEBRUARY 2004

PN1

MR T. KLEMIS: I appear on behalf of the Baking Industry Association of Victoria and its member, Ferguson Plarre Bakehouses Pty Limited.

PN2

THE DEPUTY PRESIDENT: Thank you very much, Mr Klemis. Any other appearances?

PN3

MR KLEMIS: I am sorry, your Honour, the attractive young lady is MS C. SKELSEY. Christine is a cake decorator with Ferguson Plarre Bakehouses and also on the consultative committee. I apologise for that.

PN4

THE DEPUTY PRESIDENT: No, no problems at all. I am glad to see employees are here today. Now, I will take you to the notice, section 170LK(4) notice. I think you have been kind enough to attach it, so thank you for doing that, Mr Klemis. Does it state that employees may request a union to represent them, and if so, where?

PN5

MR KLEMIS: That notice does, your Honour. Do you wish me to take you to it?

PN6

THE DEPUTY PRESIDENT: Please.

PN7

MR KLEMIS: It says:

PN8

The attached draft agreement sets out the proposed terms, and you are free to consult with and involve whoever you wish in the process, including your union.

PN9

THE DEPUTY PRESIDENT: Right. Is that consistent with the requirements of section 170LK(4), in your submission?

PN10

MR KLEMIS: I believe so, your Honour, yes.

PN11

THE DEPUTY PRESIDENT: Okay. Why is that? Does that, for example - it doesn't use the word "request", but it is the substance of that there, in other words - - -

PN12

MR KLEMIS: Yes, in this - - -

PN13

THE DEPUTY PRESIDENT: Just let me finish.

PN14

MR KLEMIS: My apologies, sir.

PN15

THE DEPUTY PRESIDENT: This is hard enough, Mr Klemis. Does your notice inform employees that they may request - or similar word - a union to represent them in meeting and conferring, etcetera?

PN16

MR KLEMIS: It says involve them.

PN17

THE DEPUTY PRESIDENT: Where does it say that? Okay, so it says you are free to involve the union.

PN18

MR KLEMIS: It would be our submission, your Honour - - -

PN19

THE DEPUTY PRESIDENT: I see. It says here "free to involve whoever you wish, including your union." Has that got the same meaning, and exactly the same meaning as you may request a union, I think the phrase is? Let us get this right. You may request the organisation, ie, union, to represent the employee in meeting and conferring with the employer about the agreement. So the elements of that are, first of all, the request from the employer to the organisation, secondly, the request to represent that person in meeting and conferring with the employer about the agreement. So those are the two elements.

PN20

So there is the request element and there is the meeting and conferring element. So let's have a look at the words. So it says here you are free to consult with an involve whoever you wish in the process. So why does that amount to the request element and the meeting and conferring element?

PN21

MR KLEMIS: We would submit to your Honour that, in fact, it is giving the employee more scope. Certainly you don't have to request the employer. You may involve whoever you wish, including your union. Now, the employer would have no control over whether the union did not wish to represent the employee, and we believe that circumscribes - not circumscribes, that is probably the wrong word - but meets the requirement of the Act, your Honour.

PN22

THE DEPUTY PRESIDENT: There has been a lot of litigation on this particular section, Mr Klemis. Having regard to that, why does it meet the requirements of section 170LK(4)?

PN23

MR KLEMIS: Would your Honour object if I just took you to it. This agreement, in fact, is probably the fourth agreement before this Commission. It was an agreement - well, actually from the state Commission, the transitional agreement came over from the 1996. The 1998 agreement was, in fact, arbitrated before his Honour, Senior Deputy President Williams, and - - -

PN24

THE DEPUTY PRESIDENT: Arbitrated, was it?

PN25

MR KLEMIS: Well, the union sought to intervene and raise certain objections to the agreement, and that was dealt by Senior Deputy President Williams, and he did direct us to make certain amendments which were - - -

PN26

THE DEPUTY PRESIDENT: To the agreement?

PN27

MR KLEMIS: Yes. And, in fact, I think one of the more significant directions was that we had made provision for overtime, this is make-up time.

PN28

THE DEPUTY PRESIDENT: But none of that relates to this issue I have asked you, which is section 170LK(4). I have no doubt what you are telling me is right, but I am here asking you questions about section 170LK(4). Now, just let me get this straight. The requirements of section 170LK(4) are mandatory, okay, even if the agreement is a first rate, excellent agreement.

PN29

MR KLEMIS: Yes.

PN30

THE DEPUTY PRESIDENT: If they are not met I am still required to refuse it by the Act. Now, I don't pretend to like that situation, and I understand it if you told me that was an absurd result, but that is what the Act seems to amount to. Now, to be perfectly frank with you, we can have a long legal argument about these words you have used for your notice. I think that would be a waste of your time and my time. My objective is, quite frankly, is to get this agreement - is to help you get this agreement certified as best I can.

PN31

MR KLEMIS: Yes, your Honour.

PN32

THE DEPUTY PRESIDENT: And it may be that the way to do that is simply to go through the process again with a section 170LK(4) notice which reflects the exact words perhaps of section 170LK(4). Then there is no argument, is there?

PN33

MR KLEMIS: No, your Honour. We are certainly pleased to take any direction you give us.

PN34

THE DEPUTY PRESIDENT: Thank you, Mr Klemis. Could I suggest that you do that.

PN35

MR KLEMIS: Yes.

PN36

THE DEPUTY PRESIDENT: And what I will do to assist you is, if you could do that, provide me with the paperwork, and I will try and have it certified without a further hearing as soon as I receive the paperwork from you.

PN37

MR KLEMIS: Thank you, your Honour.

PN38

THE DEPUTY PRESIDENT: And while we are here today we should do everything we need to do so that a second hearing isn't necessary. So I will see if I can - so the wage rates are above award rates by at least $10 a week more, is it?

PN39

MR KLEMIS: That is right, your Honour, yes.

PN40

THE DEPUTY PRESIDENT: Is that right?

PN41

MR KLEMIS: It does factor the six monthly increments, and you will see, your Honour, that they are timed fairly much with the schedules as June, July type thing, and they move in and out.

PN42

THE DEPUTY PRESIDENT: Yes, all right. And broadly it is about $10 above per week.

PN43

MR KLEMIS: That is right, yes.

PN44

THE DEPUTY PRESIDENT: The overtime rate seems to be more generous in the agreement than the award, isn't it? I think the overtime provision is more generous, isn't it? I think it seems to cut in after a nine and a half hour day rather than after a 10 hour day.

PN45

MR KLEMIS: Yes.

PN46

THE DEPUTY PRESIDENT: So that seems to be generous.

PN47

MR KLEMIS: If your Honour sees it that way, we won't argue about that, your Honour.

PN48

THE DEPUTY PRESIDENT: I am not sure. I am asking you.

PN49

MR KLEMIS: The overtime is at the first two hours at time and a half, and double time thereafter.

PN50

THE DEPUTY PRESIDENT: Yes. Sorry, say that again, the overtime is what, time and a half?

PN51

MR KLEMIS: For the first two hours, and double time thereafter.

PN52

THE DEPUTY PRESIDENT: And the award rate is the same?

PN53

MR KLEMIS: No. It is paid on the agreement rate, your Honour.

PN54

THE DEPUTY PRESIDENT: Yes. But what is the award?

PN55

MR KLEMIS: The award states the first two hours at time and a half, and double time thereafter.

PN56

THE DEPUTY PRESIDENT: So it is the same?

PN57

MR KLEMIS: Yes, basically.

PN58

THE DEPUTY PRESIDENT: But you are using a higher rate, yes.

PN59

MR KLEMIS: We are. And overtime in the Pastrycooks Award is - there is two versions of the overtime, and depending on whether you are a Monday to Friday employee, or whether you are a Monday to Saturday employee. If you are a Monday to Saturday employee, where Saturday forms part of the normal working week, overtime is paid on a weekly basis with the first four hours in excess of 38 hours being time and a half, and double time thereafter, whereas the overtime in this case is paid on a daily basis.

PN60

THE DEPUTY PRESIDENT: Right. Does the award provide for that same sort of pattern of hours, Saturday work, in the same way, or does it treat all Saturday work as being penalty rate hours, if I can put it that way?

PN61

MR KLEMIS: It is penalty rate hours, yes, your Honour.

PN62

THE DEPUTY PRESIDENT: So you have reduced the award rate for Saturdays in that respect?

PN63

MR KLEMIS: No, we have not, your Honour.

PN64

THE DEPUTY PRESIDENT: No, sorry. So you have replicated the award, Saturday rate scheme, have you?

PN65

MR KLEMIS: As to the penalty, yes, we have, but the amount is, of course, higher than the award.

PN66

THE DEPUTY PRESIDENT: Base rate you mean?

PN67

MR KLEMIS: Yes.

PN68

THE DEPUTY PRESIDENT: No, of course. I have taken that point. I am just trying to check the overtime now. So the overtime in this agreement is identical to the overtime clause in the award basically?

PN69

MR KLEMIS: Except for Sunday work, your Honour. And this was one that was, in fact, opposed by the union and - - -

PN70

THE DEPUTY PRESIDENT: Senior Deputy President Williams, you say, took a different view?

PN71

MR KLEMIS: That is right, your Honour. And Sunday work is a voluntary thing, it is at time and a half.

PN72

THE DEPUTY PRESIDENT: Yes, instead of double time.

PN73

MR KLEMIS: Instead of 230 per cent.

PN74

THE DEPUTY PRESIDENT: Right.

PN75

MR KLEMIS: And employees are only - they are required to give a commitment to work on Sundays. There is only five employees that are involved, it might be six, I am not sure.

PN76

THE DEPUTY PRESIDENT: Out of?

PN77

MR KLEMIS: Out of 60. And, in fact, there is a scramble for the Sunday work because of social - not obligations, social desires of the employees that work Sunday work, and they are mainly single people who - - -

PN78

THE DEPUTY PRESIDENT: Right. But you say it was a decision of Senior Deputy President Williams on this issue?

PN79

MR KLEMIS: Yes, there is, yes.

PN80

THE DEPUTY PRESIDENT: All right. And you can provide that to me?

PN81

MR KLEMIS: And it goes to the 1998 agreement. The union objected to Senior Deputy President Williams' decision, and drew his attention to the fact that he hadn't addressed the Sunday issue, or we hadn't addressed the Sunday issue, and he just responded that we weren't required to address the Sunday issue, on the basis that it wasn't a requirement. The employees - - -

PN82

THE DEPUTY PRESIDENT: I see. Work.

PN83

MR KLEMIS: They weren't obliged to work, shall I put it that way.

PN84

THE DEPUTY PRESIDENT: So who made this decision, did Senior Deputy President Williams?

PN85

MR KLEMIS: Senior Deputy President Williams, yes.

PN86

THE DEPUTY PRESIDENT: All right. And you can provide me with a copy of that decision?

PN87

MR KLEMIS: I will certainly provide it, yes.

PN88

THE DEPUTY PRESIDENT: Thank you very much. Terrific. All right, that is the issue of penalties and overtime. Now there is personal leave. It seems to be 53.2 hours in the first year, and 76 hours in each subsequent year, whereas the award provides for 56 hours, and then 80. Is that right?

PN89

MR KLEMIS: Sorry?

PN90

THE DEPUTY PRESIDENT: The personal leave in the agreement seems to be 53.2 hours in the first year, and then 76 hours in each subsequent year, whereas in the award the figures are 56 and 80, so that is a reduction of six hours in the first year per year, and four hours per year in each subsequent year. Is that right, and if so - - -

PN91

MR KLEMIS: I need to - - -

PN92

THE DEPUTY PRESIDENT: No. If I am wrong, please tell me, and take your time to. I mean, there is no rush. We can go into conference if it would be easier.

PN93

MR KLEMIS: If your Honour pleases.

PN94

THE DEPUTY PRESIDENT: No. It is up to you.

PN95

MR KLEMIS: Yes, I am quite happy, your Honour, yes.

PN96

THE DEPUTY PRESIDENT: Okay. Well, keep going then.

PN97

MR KLEMIS: Sorry, do you want us to go into conference, sir?

PN98

THE DEPUTY PRESIDENT: I don't. I am just saying you can if you wish, if it would be easier to explain. It is probably easier to leave on transcript, and you can just tell me what the position is.

PN99

MR KLEMIS: I am just fumbling a bit, your Honour, and I am just trying to find the clause actually. I think it was 24 or 25.

PN100

THE DEPUTY PRESIDENT: I am sorry to surprise you with this. I mean, it may be that the deficiency is made up by the extra hourly rate, I am not sure.

PN101

MR KLEMIS: Well, that was the proposal that was put to the employee, but I could take the point that you are raising.

PN102

THE DEPUTY PRESIDENT: Well, why not have a look at it, that might be the best thing.

PN103

MR KLEMIS: Yes.

PN104

THE DEPUTY PRESIDENT: You may, for example, just want to use the award number.

PN105

MR KLEMIS: How that actually has come about, it is just the penny has dropped, your Honour, is that the award was - - -

PN106

THE DEPUTY PRESIDENT: It is personal leave, sorry, not a penalty.

PN107

MR KLEMIS: Yes, personal leave, yes. It consisted of five days sick leave and two days bereavement leave. But it would appear, if the award is different to that, in the first year there is an extra day of sick leave. It could be that it is treating bereavement leave as three days, where bereavement leave was two days.

PN108

THE DEPUTY PRESIDENT: I don't know what the answer would be, Mr Klemis, but why don't you look at that, and we can deal with that again on the papers. For example, put it this way. If there is a deficiency, if I could put it that way, and the personal leave rate in the agreement is, in fact, lower than that in the award that I am required to assess the agreement against, you have two courses open to you. First of all, you can leave it as it is, and put a submission that it meets the no disadvantage test because, I don't know, the wage rate, or whatever, or, alternatively, you can change the numbers so that it is the same as the award or exceeds the award. That is a matter for you, and I am not going to tell you how to do it.

PN109

MR KLEMIS: No. I thank you for that, yes.

PN110

THE DEPUTY PRESIDENT: All right. So we will leave the matter on this basis. First of all you will provide me with the copy of Senior Deputy President Williams' decision on Sunday work. My associate will provide you with a fax number. You can post it if you wish, if that will be easier. Can you provide that, say, by Friday this week?

PN111

MR KLEMIS: Friday week would suit us better, but I will endeavour to get it before then.

PN112

THE DEPUTY PRESIDENT: Or you can do it together with the rest - why don't we do it all in one go? That might be easier.

PN113

MR KLEMIS: Yes.

PN114

THE DEPUTY PRESIDENT: So that is the first item. Secondly, you will undertake the process again and do the section 170LK(4) notice in a form which replicates, uses the words of section 170LK(4), so there is no argument. Unfortunately you will have to do the vote and so on as well. The process has to be undertaken again. That will take you three weeks or so. Thirdly, you will provide a new statutory declaration, and so on, relating to all of this in the mail as soon as you are able, and hopefully I will be able to certify it simply on the papers, having regard to the discussion we have had today.

PN115

MR KLEMIS: Yes.

PN116

THE DEPUTY PRESIDENT: You will also, of course, explain the differences between the new agreement approved and this agreement, and in that respect you will deal also with this issue of personal leave, and whether you have changed it or not. If you haven't changed it, why the agreement meets the no disadvantage test. If you have changed it, what the change is. So we will leave it on that basis. If you need any help at any stage please ring my associate and, you know, we will provide documents and so on. Well, anything you need really.

PN117

MR KLEMIS: Always pleased to talk to Ms Reeve. Yes, thank you, your Honour.

PN118

THE DEPUTY PRESIDENT: Well, thank you, Mr Klemis. So you are happy to proceed on that basis?

PN119

MR KLEMIS: I am, your Honour, indebted to you.

PN120

THE DEPUTY PRESIDENT: No. Thank you very much. So we will await your papers and your fresh application with interest, and we will deal with it as quickly as we can. Thank you very much.

PN121

MR KLEMIS: Thank you, your Honour.

PN122

THE DEPUTY PRESIDENT: This matter stands adjourned.

ADJOURNED INDEFINITELY [3.27pm]