AG2005/469, Transcript of Proceedings [2005] AIRCTrans 1537 (18 July 2005)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 12129-1

COMMISSIONER LAWSON

AG2005/469

APPLICATION BY SANDMEND PTY LTD
s.170LK - Agreement with employees (Division 2)
(AG2005/469)

SYDNEY

9.59AM, WEDNESDAY, 06 JULY 2005

THE FOLLOWING PROCEEDINGS WERE CONDUCTED VIA VIDEO CONFERENCE AND RECORDED IN SYDNEY

PN1

MR R TAPPOO: I seek leave to appear for the company in this matter. I have with me today in Canberra - on the left of our screen is MR S PLUMBER, a director of the employer company. To his left is MR A BARBER, the business manager of the Subway business the subject of the agreement. And to Mr Barber's left is MS K KEMP, the employee representative.

PN2

THE COMMISSIONER: Thanks, Mr Tappoo. The matter before the Commission is an application filed pursuant to section 170LK of the Workplace Relations Act for the certification of an agreement, the applicants being Sandmend Pty Ltd and the employees of that employer. Attached to the application is a statutory declaration by a company director, Mr Plumber, dated 4 May 2005. I note that there was no employee representative statutory declaration. I note the matter is filed 3 days out of time and it will be necessary for you to deal with an out of time application at the first instance, Mr Tappoo.

PN3

MR TAPPOO: Yes, Commissioner. Firstly, we'd seek leave for the Commission to exercise its discretion under section 111(1)(r) of the Act to extend the prescribed time. The reason for the delay was an administrative one and the fault rests with our organisation. I've taken instructions from my client this morning and he has confirmed that there's been no changed whatsoever to the composition of the workforce since the date of the ballot and the lodgement. And further that there was an 18 nil unanimous majority voting in favour of the agreement in the secret ballot. So on that basis I'd rely on the decision of Vice President Ross in TNT Logistics (SABCO Warehouse) Enterprise Agreement and ask that the Commission extend the prescribed time.

PN4

THE COMMISSIONER: Thank you, Mr Tappoo. Now, Mr Plumber, you're the director of the company, do you have anything to contribute to this point about the application being filed late?

PN5

MR PLUMBER: No, I don't. I didn't realise it was filed late until a week or two ago. So no, I don't have anything to add.

PN6

THE COMMISSIONER: Yes, all right. Well, I note that Mr Tappoo's accepted responsibility for the matter being filed late. In those circumstances, I'll exercise the powers available to me under section 111(1)(r) and extend the time for the filing of the application up to and including the date of filing, that being 25 May 2005.

PN7

MR TAPPOO: Thank you, Commissioner.

PN8

THE COMMISSIONER: Now, will you deal with the application proper, please Mr Tappoo.

PN9

MR TAPPOO: Certainly. We seek to have the agreement, which is intended to be known as the Sandmend Pty Ltd Certified Agreement 2005, certified pursuant to section 170LT of the Act.

PN10

THE COMMISSIONER: Can I just, on that point, you did note that it's 2005. I note that in Mr Plumber's notice of intent to the employees, that he made reference to the Sandmend Pty Ltd Certified Agreement 2004. Is there another agreement?

PN11

MR TAPPOO: No, there certainly isn't, Commissioner. It was purely a typographical error. There's no other certified agreement applying to this workplace.

PN12

THE COMMISSIONER: Do you confirm that, Mr Plumber?

PN13

MR PLUMBER: That's correct. There's no other certified agreement. I've just incorrectly put in the date.

PN14

THE COMMISSIONER: Okay, please go ahead, Mr Tappoo.

PN15

MR TAPPOO: We submit that the agreement firstly meets the threshold requirements under division 1 and 2 of Part VIB of the Act. It was arrived at through a process consistent with section 170LK. We submit that it meets the other requirements of section 170LT of the Act, in particular that it passes the no disadvantage test, in our submission. It contains a dispute settlement procedure at clause 21 of the agreement and at clause 3 of the agreement it provides for a nominal expiry date not more than 3 years after the date of its intended certification.

PN16

Commissioner, there's been some correspondence between our office and your chambers that went to some issues or questions you had in relation to this application. Would you like me to go through that correspondence now?

PN17

THE COMMISSIONER: Well, you can or I'll lead into them, but I welcome your responses and explanations, Mr Tappoo. I have to say to you I'm not completely satisfied with those responses, but go ahead.

PN18

MR TAPPOO: In relation to the first question, which goes to the fact that there were no signatures on the agreement, we - - -

PN19

THE COMMISSIONER: Not only were there no signatures on the agreement, there was no employee statutory declaration.

PN20

MR TAPPOO: Okay. We say that the employees' genuine acceptance of the agreement was done by secret ballot which took place between 26 April and 1 May at the workplace. That secret ballot returned an 18 nil majority result.

PN21

THE COMMISSIONER: Strange about that. You went to the trouble of forwarding to me the ballot papers. And I've checked the ballot papers, Mr Tappoo. You should have known that I would have checked that sort of detail, with a matter coming from EI Legal. In fact the ballot papers do not support the contention in Mr Barber's statement of returning officer, or your contention from the bar table, that it was 18 nil.

PN22

MR TAPPOO: There was 18 nil.

PN23

THE COMMISSIONER: Well, it wasn't 18 nil according to the ballot papers that you provided my office. The ballot papers clearly indicate that there 18 votes in favour of the agreement, there was one against the agreement and there is what appears to be an invalid vote. You provided me with 20 ballot papers, all of which have Mr Barber's signature on the back of them, so I presume they're genuine.

PN24

MR TAPPOO: They are all genuine.

PN25

THE COMMISSIONER: But the fact is that Mr Barber's statement as a returning officer can't be relied upon. Not on the material evidence that you subsequently provided me. How do you explain that?

PN26

MR TAPPOO: I can explain that there was certainly no mischief intended. It must have been a mistake and I'd be happy to provide an employee statutory declaration, if it pleases the Commission.

PN27

THE COMMISSIONER: Well, you and I have had this discussion many times. You continue to not provide an employee statutory declaration. You know you're going to be questioned about it every time you serve up one of these LK agreements, and particularly when - - -

PN28

MR TAPPOO: Commissioner - - -

PN29

THE COMMISSIONER: - - - you give me this sort of explanation. Mr Tappoo, hear me out because you are bordering on misleading this Commission in your continued way that you represent your clients. And you come along here and say oh, that's just a mistake, or you give some other explanation. This is not a mistake, it's a statement by Mr Barber as the returning officer. I haven't heard what he's got to say, but he'll get a chance to say his own piece. But you stand up here and when I catch you out again, you say oh, it must be a mistake. Not good enough, Mr Tappoo.

PN30

MR TAPPOO: Commissioner, I reject any statement that either myself or anyone in my organisation has ever tried to mislead the Commission. I reiterate that there was no mischief intended and I might further indicate, in relation to the employee statutory declaration, rule 49(1)(b)(i) of the Industrial Relations Commission Rules - - -

PN31

THE COMMISSIONER: You don't have to explain the rules to me, Mr Tappoo.

PN32

MR TAPPOO: - - - doesn't require any employee statutory declaration if there was no employee acting - - -

PN33

THE COMMISSIONER: Well, you tell me then why Mr Plumber's notice of intent invited employees to sign as an indication of their acceptance and not one of them signed. How do you explain that, Mr Tappoo?

PN34

MR TAPPOO: The invitation to sign - signatures are just a token way of confirming their acceptance. I'd reiterate that the actual acceptance took place in the secret ballot. A secret ballot is a far better indicator of genuine acceptance, in our submission.

PN35

THE COMMISSIONER: I appreciate that. And the secret ballot results that you have provided me with are not consistent with Mr Barber's statement. Mr Barber, what do you have to say about this difference of opinion I'm having with Mr Tappoo. You, after all sent a statement as being the returning officer. You said in that statement that there were 17 employees present at the meeting and that you cast a valid vote as well, and that there were 18 votes in favour and none against. But that's not true, is it?

PN36

MR BARBER: Unfortunately, I don't have the ballot papers in front of me.

PN37

THE COMMISSIONER: No, I have them in front of me. Mr Tappoo sent them to me. And I can tell you what I've seen and what I've read. I acknowledge there were 20 ballot papers in the envelope sent to me, all with your signature on the back of them. 18 in favour of the agreement, one against the agreement and one apparently informal. Why did you make out this statement that there was only 18 people at the meeting?

PN38

MR BARBER: Sir, I'm not sure about the informal vote. Certainly all of the votes were initialled by myself and were dealt with correctly. If the paperwork has been filled out to say that there was 18 nil, that is obviously incorrect. That may have been a mistake on my part or - obviously the paperwork says 18 nil.

PN39

THE COMMISSIONER: Yes, the paperwork does, and you've got your signature on it.

PN40

MR BARBER: I think, in this instance, we must obviously rely on the ballot papers because I was the one that copied those and initialled them and relayed them to the staff in a secret ballot, and they were all dealt with correctly. So, if there is one there that says a no vote, then obviously we should take that into consideration.

PN41

THE COMMISSIONER: So you accept that your statement as being the returning officer contained at least two errors in terms of the number of people attending and the outcome of the ballot?

PN42

MR BARBER: On the face value of what I've got in front of me and what we're discussing, I do.

PN43

THE COMMISSIONER: All right, thank you, Mr Barber. Yes, Mr Tappoo?

PN44

MR TAPPOO: The second question raised in your correspondence relates to clause 6.3 of the agreement where you asked - - -

PN45

THE COMMISSIONER: Well, perhaps just before you do go onto that. Perhaps I can turn to you, Mr Plumber.

PN46

MR PLUMBER: Yes.

PN47

THE COMMISSIONER: Did it concern you at all that in your notice of listing to the employees, when you invited them to:

PN48

freely sign the agreement after this time to confirm your acceptance -

PN49

and that's a quote, but no-one signed? You tell me what happened.

PN50

MR BARBER: Sorry, sir. If I could just - I believe that I did get the staff to sign to confirm their vote. I don't have a copy of that with me. As far as I'm aware, that was forwarded to ..... I don't, like I said, I don't have a copy of that in front of me, but there was a form for the staff to go through and confirm their yes vote, including signatures, that was given to the staff.

PN51

THE COMMISSIONER: So tell me what form that was, was it the last page of the agreement? Was it clause 23.2 of the agreement where there is provision in the agreement for employees to sign?

PN52

MR BARBER: I don't have a copy of clause 23 attached to the agreement. Yes, it did look similar to that - clause 23.

PN53

THE COMMISSIONER: Well, I can't see whatever you've got there, but
that's - - -

PN54

MR BARBER: Yes, it was. Yes. That's the way it did get signed and that the way I - that question you just asked me before, that the staff could freely sign - they did.

PN55

THE COMMISSIONER: Well, where's the evidence of that? I don't have the evidence of that?

PN56

MR BARBER: I don't know if I've got a copy, if I kept a copy of it or it was sent, but - and then after we did that and - which I felt the secret ballot was certainly the best way to go because obviously people aren't put under any pressure to sign it, you know, in front of anyone or whatever. So I thought then that process was the final process in the staff sort of agreeing to the - - -

PN57

THE COMMISSIONER: Sorry. What was the final process? The ballot?

PN58

MR BARBER: The secret ballot.

PN59

THE COMMISSIONER: Yes, the secret ballot is filling out a ballot paper and returning that anonymously. And I acknowledge that there was an outcome. But then you invited the employees to sign the agreement as an example of their free acceptance of the agreement.

PN60

MR BARBER: That's correct, sir.

PN61

THE COMMISSIONER: No-one did so, and I want to know why.

PN62

MR TAPPOO: I can offer an explanation, Commissioner.

PN63

MR BARBER: Sir, I contest that it wasn't actually done because I'm aware that it was. Because we don't have a copy of it here and I know that it was actually done, I can only assume that it was forwarded to Sydney there and it has been misplaced, because it certainly was done and the employee representative can confirm that. It was a form for the staff to sign their agreement that they had done a yes vote in the secret ballot, and that was completely up to them whether they were going to sign that. And as far as I'm aware all the staff that put in a yes vote in the ballot did sign it to confirm the ballot.

PN64

THE COMMISSIONER: Can you explain to me what it was that they signed, Mr Barber?

PN65

MR BARBER: It was a form the same as clause 23 the signatures in the certified agreement, where they could fill out their name, date and sign that they had confirmed a yes vote.

PN66

THE COMMISSIONER: All right, thank you Mr Barber. Now you want to contribute to that, Mr Tappoo?

PN67

MR TAPPOO: Yes. Well, certainly in terms of the copy of the agreement here, I've only got the employer's signature.

PN68

THE COMMISSIONER: So have I.

PN69

MR TAPPOO: But I can offer an explanation as to why. My advice to my client was that the secret ballot - we were running out of time in terms of the 21 day deadline - I advised my client that the secret ballot constitutes a genuine acceptance of the agreement. Now, we've had matters before Commission members in the past where we've had all employees sign the agreement and Commission members have raised concerns that when an employer puts an agreement in front of an employee and says sign if you indicate yes or no, then that could be construed as some sort of undue influence. The best indication - - -

PN70

THE COMMISSIONER: Well, unless you give me some authority - you're just pulling this off the top of your head, Mr Tappoo.

PN71

MR TAPPOO: No.

PN72

THE COMMISSIONER: And it might be another story for all I know.

PN73

MR TAPPOO: There's no other story. I can confirm there's no mischief. There was no mischief intended at any point.

PN74

THE COMMISSIONER: Well, the fact that you were running out of time, quite frankly, is not good enough. When there's an invitation to employees, a specific invitation to freely sign to acknowledge their acceptance, and no-one signs, it's not surprising that the Commission asks the questions that I've been asking of you and of Mr Plumber and of Mr Barber this morning. It doesn't make sense. It doesn't follow. And these explanations appear to be sort of after the event explanations. Now either you have this appropriate page that Mr Barber says he doesn't have with all the employees' signatures on it, or this is all a giant story. Perhaps I might turn to you, Ms Kemp.

PN75

MS KEMP: Yes.

PN76

THE COMMISSIONER: You are not under cross-examination here, but did you sign - - -

PN77

MS KEMP: Yes, I did.

PN78

THE COMMISSIONER: - - - a copy of clause 23.2 of the agreement?

PN79

MS KEMP: Yes, I did.

PN80

THE COMMISSIONER: Did you sign in your own right or did you sign on behalf of other employees?

PN81

MS KEMP: No, I signed in my own right.

PN82

THE COMMISSIONER: In your own right. Okay. Well, there's evidence that one person signed it. Did you sign it, Mr Barber?

PN83

MR BARBER: I believe I - I'm not actually sure whether my name was on it, in the event. I think I - - -

PN84

THE COMMISSIONER: Well, you were invited by Mr Plumber to vote and you were also invited by Mr Plumber to sign the agreement. Did you do so?

PN85

MR BARBER: I believe I did. I don't have it in front of me to confirm that, so I wouldn't swear to it.

PN86

MR TAPPOO: Commissioner, I don't have that document in front of me, but I'll endeavour to - as soon as possible after this hearing - to try and locate that signature page. If I'm unable to locate it, then we'd be happy to provide the Commission with an employee statutory declaration, if that would assist the Commission.

PN87

THE COMMISSIONER: Well, I don't know how that can be done after the event. And the single employee statutory declaration is going to say what?

PN88

MR TAPPOO: It can attest to the fact that there'd been a secret ballot, what date it took place, what happened. Or I could endeavour to get some employees' signatures for the Commission. I reiterate that there was never any mischief at any point, by any party.

PN89

THE COMMISSIONER: Yes, go ahead, Mr Tappoo.

PN90

MR TAPPOO: The second question in the Commission's correspondence related to clause 6.3 of the agreement. The question was:

PN91

Where are the welcome letter and company policy documents referred to in that clause available for employees to read?

PN92

I confirm that the welcome letters are given to employees upon their engagement and constitute the common law contract of employment between the employer and the employee. The company policies are in the form of a staff handbook that's given to each individual employee when they also start. Clause 6.3 makes it clear and in mandatory terms that neither the welcome letter nor the company policies can undercut the minimum entitlements which are enshrined in the certified agreement.

PN93

THE COMMISSIONER: It also says that the company policies can be amended from time to time.

PN94

MR TAPPOO: If it is amended, it will be amended in a way that does not undercut the minimum entitlements of the agreement.

PN95

THE COMMISSIONER: Well, here you're asking me to accept something that is unknown. It says, and I quote, second sentence of clause 6.3 of the agreement:

PN96

The agreement may -

PN97

so it's discretionary:

PN98

- also be read in conjunction with company policies as amended from time to time specified in writing and to be made available to all employees.

PN99

Now, that to me sounds all one way traffic. The employer may change the policies and may notify the employees. It goes on to say, and I quote:

PN100

These additional documents can fix employment status, individual rates of performance, company policy and other benefits provided always that such must be at or above the legal minimums of this agreement.

PN101

So that clearly indicates to me that a company policy can be altered and that can affect employees' status, their individual rates of pay, company policies can be altered and other benefits can be altered. It's all very loose, Mr Tappoo.

PN102

MR TAPPOO: At or above the minimum entitlements of the agreement. Even if employees were under the award, Commissioner, you could still have a common law contract and you could still have company policies that could be changed from time to time.

PN103

THE COMMISSIONER: Of course. But this is not employees working under the award, this is employees working under a section 170LK agreement,
Mr Tappoo. You've run that argument before me before, and I've knocked it over before as I knock it over now. This is an all embracing agreement giving the employer the unilateral right to change its policies as it sees fit some time during the agreement. That to me is a very open ended clause of the agreement.

PN104

MR TAPPOO: What we're dealing with, Commissioner, is a certified agreement that prescribes minimum terms and conditions. Company policies can be changed from time to time and my argument is you need that kind of flexibility for a small business. The point is the minimum entitlements of this certified agreement cannot be undercut. That's the mandatory terms of this agreement.

PN105

THE COMMISSIONER: Can I turn to you, Mr Plumber? What's your understanding of the terms and conditions of this agreement?

PN106

MR PLUMBER: Well, I think it's right it's enshrined in this agreement that the changing of any policy or change to the agreement, it certainly must meet the agreement, it can't be less than what the agreement states. The policies and procedures are generally - if they're changed they're changed by the Subway company themselves. I take your point though, but we certainly wouldn't change our policies or procedures to make it worse than the agreement. The last sentence in 6.3 clearly states that the agreement's enshrined in here all the minimum entitlements to the employees.

PN107

THE COMMISSIONER: I think you should read that last sentence a little more carefully, Mr Plumber, because it doesn't quite say that. It says, and I quote:

PN108

Additional rates and terms so agreed -

PN109

and I emphasise those words "so agreed":

PN110

- must not vary the minimum entitlements of this agreement.

PN111

Where is agreement secured to these unilateral changes in policies determined by you or your principals? How and when are the employees embraced within the process of somehow reaching agreement?

PN112

MR PLUMBER: Are you talking about the mechanics of it? How we come to the agreement?

PN113

THE COMMISSIONER: No. I'm taking you to the exact words. It says:

PN114

Additional rates and terms so agreed -

PN115

How and when does that occur?

PN116

MR PLUMBER: I don't know. I'm not sure. I don't know how to answer that question, to be honest.

PN117

THE COMMISSIONER: Well, it makes a bit of a mockery of the words if you don't understand what they mean, because if you are conferring upon yourself a capacity to alter company policies and this agreement is to be read in conjunction with those company policies and no-one knows what those changes might be, how can you say in that last sentence that:

PN118

Additional rates and terms so agreed -

PN119

When it's apparent to me that there's no employee involvement in this at all.

PN120

MR BARBER: Sir, sorry, if I may. Obviously there's no clause in the certified agreement that states how we would come across an agreement with employees about a policy change. I think it must be said that one of the reasons for that would be that the company policy in the employee handbook is not something that we manifest, it's something that's handed to us as a franchisee. That policy hasn't been changed as long as I've been with the company, which is seven years. And it's not something that we would go about making any changes to.

PN121

THE COMMISSIONER: That's no change to the employee handbook? Is that right?

PN122

MR BARBER: That's correct, which is the policies.

PN123

THE COMMISSIONER: And that's the Subway handbook?

PN124

MR BARBER: That's correct.

PN125

THE COMMISSIONER: Yes, but your company doesn't run solely on the Subway handbook, you have other company policies and procedures, and it's those policies and procedures that are referred to in this paragraph in the agreement.

PN126

MR BARBER: And those would be additional to what's laid out in the certified agreement.

PN127

THE COMMISSIONER: Well, hang on. What's additional to the certified agreement? This clause links the agreement to your company policies and procedures.

PN128

MR BARBER: That's right.

PN129

THE COMMISSIONER: You can't have this agreement then being overridden by something else again.

PN130

MR TAPPOO: It's not going to be overridden, Commissioner.

PN131

THE COMMISSIONER: Well, I'm not asking you the question, Mr Tappoo. I'm asking the owners of the business who don't appear to understand their own agreement.

PN132

MR PLUMBER: Certainly, I just view it as it would be any additional rates and terms would obviously be better - well, be more than what's laid out in this agreement. We can't change the agreement because it's the law, but additional rates and terms so agreed upon would be if we wanted to do more for the employee rather than less.

PN133

THE COMMISSIONER: Well, that's a very noble position to take, and it's a most appropriate position to take.

PN134

MR PLUMBER: Yes. I mean, I certainly wouldn't do less - I mean, you can't do less than the agreement. It's just if you wanted to do more for the employees.

PN135

THE COMMISSIONER: Yes. My difficulty is what the words mean and what you intend. What the words say and what you intend to do, which it is, in my experience, are often quite a different thing.

PN136

MR PLUMBER: It's certainly our intention would never be to do less or to make it harder, it would certainly be to do additional to what the agreement states.

PN137

THE COMMISSIONER: Okay. Well, that adds some different interpretation to clause 6.3, Mr Tappoo. It might be necessary for you to consider revamping clause 6.3 in the patent agreements that you serve up to your clients, so that the wording in the agreement actually meets the intentions of the employer and not just some words that are generated by EI Legal.

PN138

MR TAPPOO: What the parties to the agreement just told you was that the minimum entitlements of this agreement will not be overridden.

PN139

THE COMMISSIONER: I accept that.

PN140

MR TAPPOO: That's exactly what this clause says.

PN141

THE COMMISSIONER: That's not exactly what the clause says.

PN142

MR TAPPOO: That's exactly what it says.

PN143

THE COMMISSIONER: I've read it differently, Mr Tappoo, so others can read it as they say choose. But we now have a number of explanations of what clause 6.3 on the public record from the very people who are directly responsible for the implementation of this agreement.

PN144

MR TAPPOO: Okay.

PN145

THE COMMISSIONER: And that's not you.

PN146

MR TAPPOO: Right.

PN147

THE COMMISSIONER: That's the employers of Sandmend.

PN148

MR TAPPOO: What my clients have stated is that the policies they currently use are the Subway franchisor manual or handbook. This agreement gives them the right to make their own policies. If they do make their own policies, it can't undercut the minimums of this agreement. And that's on the record how many times now?

PN149

THE COMMISSIONER: That's right. I'm now satisfied with what it means, but that's not what it says. And that's the whole point. You keep on serving up these agreements that say something, but mean something else. And different clients of yours have a different view of the interpretation of these clauses. The worst concerns me and that's while I'll always seek clarification of them.

PN150

MR TAPPOO: If it please the Commission.

PN151

The third question related to clause 13.2 of the agreement. The question is:

PN152

Why must additional hours be claimed by the employee?

PN153

Again, we confirm our instructions that employees will be paid for all hours work.

PN154

THE COMMISSIONER: At the ordinary rate?

PN155

MR TAPPOO: At the ordinary rate. It is the penalties for additional hours which must be claimed in advance and in writing. And the parties have agreed upon a broader span of ordinary hours in the agreement that is available under the award. Specifically it contains hours that can be required to be worked on Saturdays, Sundays, public holidays and evenings within the parameters of the agreement. So, in reaching all of this, the parties have agreed that the employer shall not require employees to work overtime or additional hours. So the incidence of overtime, for starters, would be very rare.

PN156

THE COMMISSIONER: I accept the fact that you say that the employer will not require the employees to work overtime, but being like any small business and particularly any franchise outlet such as a Subway outlet, there will be occasions on which employees will be required to work overtime on an unexpected basis. How are they then paid?

PN157

MR TAPPOO: They certainly would be paid for all hours work at the ordinary rate. The agreement says that penalties for overtime must be claimed in advance and in writing. Now, in advance and in writing could mean any time. The employee could, from day one, say all right, I'll exercise my right. If I'm required to work overtime at any stage, or if I do work overtime at any stage, I will exercise my right to overtime penalties.

PN158

THE COMMISSIONER: No, you're talking theoretically now, aren't you?

PN159

MR TAPPOO: Yes, I'm talking theoretically.

PN160

THE COMMISSIONER: Will all employees of this employer have that option?

PN161

MR TAPPOO: Certainly.

PN162

THE COMMISSIONER: I see. Is that your understanding, Mr Plumber?

PN163

MR PLUMBER: That's correct, yes.

PN164

THE COMMISSIONER: Well, how will you pay your employees who work unexpected overtime?

PN165

MR PLUMBER: Most of the people, we just pay them ordinary hours. So our workforce at Subway, the vast majority are students, school age students or uni students. So if they work overtime, if they're required to work overtime, which is very rarely - if it's an hour or someone's running late or whatever, they just - obviously they're asked if they can do it, for a start. If they can't, well then it's our bad luck. If they can and they're willing to work it, then they just get paid the ordinary hours.

PN166

THE COMMISSIONER: So they know they get paid the ordinary hours and they know that the rates of pay have a loading for some overtime, some weekends and some public holidays built into the all purpose ordinary time rate?

PN167

MR PLUMBER: That's correct.

PN168

THE COMMISSIONER: Do you believe your employees clearly understand that?

PN169

MR PLUMBER: Definitely because - they definitely understand it.

PN170

THE COMMISSIONER: Okay. Thank you. Do you have anything else on 13.2, Mr Tappoo?

PN171

MR TAPPOO: Just an acknowledgement that the current wording of 13.2 gave rise to your question understandably by the absence of the words "penalties for" in between "all" and "additional" in the beginning of the second sentence of that sub-clause. I'll just confirm again what I've stated in correspondence on the record - that we confirm our instructions that employees will be paid for all hours worked at the applicable ordinary rate as a minimum, and we hereby confirm that on the record. That's the only further point I had, Commissioner.

PN172

THE COMMISSIONER: Okay. All right, do you have anything further, Mr Tappoo?

PN173

MR TAPPOO: Nothing further from me, Commissioner.

PN174

THE COMMISSIONER: Now, to you Mr Plumber and to you, Ms Kemp. You are here as representatives of the employer, in your case Mr Plumber, and Ms Kemp as the representative of the employees. When I'm asked to certify an agreement of this nature, I give those representatives of the employer and the employees an opportunity to ask questions of the Commission about the certification process. Do either of you have a question concerning the certification process?

PN175

MS KEMP: No.

PN176

MR PLUMBER: I don't have a question either.

PN177

THE COMMISSIONER: Do you both understand that my certifying the agreement will give the agreement legal force?

PN178

MS KEMP: Yes.

PN179

MR PLUMBER: Yes.

PN180

THE COMMISSIONER: Right, okay. Thank you.

PN181

This matter is an application by the employer, Sandmend Pty Ltd, and the employees of that employer for the certification of an agreement under section 170LK of the Workplace Relations Act. The agreement applies to the operations of the employer at Dickson in the ACT. The employer is a constitutional corporation for the purpose of sub-section 170LI(1) and thus the agreement is applicable to single business, part of a single business or a single place of work for the purpose of sub-section 170LB of the Act. On the basis of the submissions of Mr Tappoo and the parties in Canberra, and the statutory declaration of Mr Plumber submitted in accordance with rule 49(2), I'm satisfied the agreement meets the relevant requirements of section 170LK.

PN182

I'm also satisfied on what is before me that 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. I've had identified to me those relevant employees referred to in sub-section LT(7) and am satisfied those employees were consulted and were informed of the matters described in sub-section 170LK(7) in an appropriate manner, and that the effects of the terms of the agreement were properly explained to them.

PN183

Consequently, I will certify the agreement under section 170LT of the Act with effect from today's date, being 6 July 2005, and the agreement shall remain in force until 5 July 2008. That concludes the matter and the Commission will adjourn.

<ADJOURNED INDEFINITELY [10.37AM]