AG2004/1797, Transcript of Proceedings [2004] AIRCTrans 866 (16 March 2004)

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TRANSCRIPT OF PROCEEDINGS

O/N 2280

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER RICHARDS

AG2004/1797

APPLICATION FOR CERTIFICATION
OF AGREEMENT

Application under Section 170LK of the Act
by Joe White Maltings Pty Ltd for certification
of the Joe White Maltings, Redbank, Brisbane
Agreement 2004

BRISBANE

10.27 AM, WEDNESDAY, 25 FEBRUARY 2004

PN1

THE COMMISSIONER: If I could just take formal appearances; if you could just give me your full name.

PN2

MR M. PRAZAK: Miraslav Prazak. I'm appearing on behalf of Joe White Maltings in relation to an agreement under Section 170LK between Joe White Maltings and its employees.

PN3

THE COMMISSIONER: Good. Thanks, Mr Prazak. And with you today is - - -

PN4

MR J. ROBINSON: John Robinson, representing the employees.

PN5

THE COMMISSIONER: Okay. Thanks very much, Mr Robinson. Mr Prazak, we have had some preliminary discussion about just some technical matters to do with this agreement, or, rather, sourcing some documents, which has been successful and has saved us time. For purposes of the primary issue at stake in this agreement, the operation of the no-disadvantage test, I am satisfied that the agreement does meet the no-disadvantage test, though Mr Prazak isn't exactly able to tell me at the moment - and if he confirms - the composition of the classifications used in the certified agreement.

PN6

Nonetheless, the hourly rates in the agreement for each category, or each classification, of employee covered by the agreement is greater than all of the hourly rates specified in the award; that is to say that the lowest rate in the agreement is above the highest rate in the award for purposes of the relevant bundle of classifications. So I am satisfied that the agreement meets the no-disadvantage test in that regard.

PN7

I am aware from the materials that have been provided to me that there has been only - am I right, Mr Prazak, in assuming that there has only been cashing out of the laundry allowance from the award only?

PN8

MR PRAZAK: That is correct.

PN9

THE COMMISSIONER: Yes, so that's the only item that's been bundled into the substantially higher hourly rate of pay. Thank you for that. I have before me a copy of the - Mr Prazak has provided me a copy of the notice issued on 12 November 2003 to all staff relating to the intention to make the certified agreement. The clause that is used in the agreement for purposes of satisfying Section 170LK(4) reads, and I quote:

PN10

You may request assistance or attendance of a union representative if you require it.

PN11

I should, for broader purposes, read the entirety of the notice. The notice reads:

PN12

Please note the current enterprise bargaining agreement, Agreement 2002, is due to expire on 31 December 2003.

PN13

Now, importantly, the next clause reads:

PN14

Negotiations are now commencing in order to have a new agreement covering the period 2004 to 2005 in place prior to that date.

PN15

Now, I presume the agreement, according to your statutory declaration, was before the employees for a minimum of 14 days before the vote took place.

PN16

MR ROBINSON: That's correct.

PN17

THE COMMISSIONER: And Mr Prazak concurs with that. That said, the next sentence reads:

PN18

You may request the assistance or attendance of a union representative if you require it.

PN19

Now, that clause in its own right, and read separately, does not satisfy Section 170LK(4) of the Act. However, read in conjunction with the preceding sentence, it reads:

PN20

Negotiations are now commencing...

PN21

Now, as a consequence of reading the last clause in conjunction with the penultimate clause, I am of the view that the right specified for purpose of assistance or attendance of a union is in relation to negotiations which are now commencing and there is no requirement for any person to be informed or to request that the union representation be subject to any condition or advisement to the employer in any way, shape or form. That said, I can confirm my understanding to the extent that it may be right with Mr Robinson. Mr Robinson, is that generally how the notice was understood to confer the right for representation - - -

PN22

MR ROBINSON: Yes.

PN23

THE COMMISSIONER: - - - for employees? They understood that they could request the attendance or assistance of the union representative in relation to the negotiations that were afoot?

PN24

MR ROBINSON: Yes.

PN25

THE COMMISSIONER: And there wasn't any understanding or appreciation or their view that it was subject to any other requirement to notify the employer or anything?

PN26

MR ROBINSON: No.

PN27

MR PRAZAK: Everything was okay, yes.

PN28

THE COMMISSIONER: Now, your status as an employee representative was conferred by what means? Was there a show of hands, a vote?

PN29

MR ROBINSON: Yes, I've been standing up for the fellows for about four years now. I always have been the - on behalf of the all the fellows.

PN30

THE COMMISSIONER: In essence, by custom and practice, you are the employee representative by virtue of your longer service, I presume. Is that right?

PN31

MR ROBINSON: Yes.

PN32

THE COMMISSIONER: Okay.

PN33

MR PRAZAK: Commissioner, the workforce only constitutes six members, and we have analysed the document all together, so everyone is present and ultimately the agreement was by way of show of hands.

PN34

THE COMMISSIONER: That's right. Given the smallness of the workforce, that's understandable. And you confirm also that Mr Robinson was your principal employee representative for purpose of the negotiations, hence, his view of the understanding of the six employees, comprehension of their entitlements, is in your view accurate? Good. Thank you, Mr Prazak.

PN35

I am satisfied on the basis of the material that's been presented to me, the statutory declarations, the submissions of the parties and my analysis of the agreement and the agreement in relation to the award that the agreement meets the requirements of the Act and has been made consistent with the requirements of the Rules of the Commission, and I therefore certify the agreement to operate from today's date, consistent with clause 1.5.1, to operate until 4 January 2006; that is to say, the agreement's nominal expiry date will be 4 January 2006 and the agreement will operate from today's date.

PN36

MR PRAZAK: Excuse me, Commissioner. The intent was that the agreement would effectively be backdated to 1 January two thousand and - - -

PN37

THE COMMISSIONER: Yes, I noticed that, but the Commission can't retrospectively certify an agreement.

PN38

MR PRAZAK: I understand.

PN39

THE COMMISSIONER: It's a matter for you and the employees as to your understanding of whether the agreement applied from that date as to whether you are going to back-pay people to that date. Now, I presume the agreement hasn't been in operation, has it, or has it been?

PN40

MR PRAZAK: I effectively authorised the rates to be revised already.

PN41

THE COMMISSIONER: Right, but you understand that the Commission can't retrospectively certify?

PN42

MR PRAZAK: I understand.

PN43

THE COMMISSIONER: I understand from you that the important component, that is, the payment scale under the agreement, has been in operation from that date in any event.

PN44

MR PRAZAK: Correct.

PN45

THE COMMISSIONER: But for Commission purposes, certification is from today's date with a nominal expiry date on 4 January 2006, and it's my understanding, as you have put to me, Mr Prazak, that the agreement has been in operation in substantive terms since 1 January 2004 in any event.

PN46

MR PRAZAK: Correct.

PN47

THE COMMISSIONER: Good. Thanks, everyone. We're adjourned.

ADJOURNED INDEFINITELY [10.35am]