AG2005/3557, Transcript of Proceedings [2005] AIRCTrans 1552 (19 July 2005)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 12159-1

COMMISSIONER WHELAN

AG2005/3557

APPLICATION BY H & P PTY LIMITED
s.170LK - Agreement with employees (Division 2)
(AG2005/3557)

MELBOURNE

10.09AM, THURSDAY, 07 JULY 2005

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

PN1

THE COMMISSIONER: I'm not quite sure whether you can see me in Sydney, but I think you can hear me, is that right?

PN2

MR AGNEW: I can hear you, yes Commissioner but no, we can't see you.

PN3

THE COMMISSIONER: I think we'll manage as best we can. I'm sorry we've had a few problems with the video link this morning. I'll just take the appearances for the record please.

PN4

MR C AGNEW: Solicitor of Agnew D'Arcy Legal, I have with me
MS C EDWARDS, who is also a solicitor of my firm. I seek leave to appear.

PN5

THE COMMISSIONER: Leave is granted. I think here in Melbourne we have Mr Peng, is that right?

PN6

MR PENG: Yes

PN7

THE COMMISSIONER: And Ms Mills.

PN8

MS MILLS: Yes, that's correct.

PN9

THE COMMISSIONER: Thank you. Mr Agnew, I wanted to thank you first of all for the responses to the correspondence that I sent you. I'm firmly of the view that it's useful to try and sort these matters out before we come to a hearing and the material that you have provided me has enabled me to satisfy myself in relation to some issues that I had and also, I've also received from you in relation to that - those issues some - - -

PN10

MR AGNEW: Undertakings.

PN11

THE COMMISSIONER: Undertakings, that's right, in relation to particular matters. Now, we have here - I also have here, as well as the copy of the agreement, I also have here the statutory declarations that have been made by
Mr Peng and Ms Mills in support of the application. Taking into account I also have the correspondence on the file from you, are there any other matters in relation to the application that you wish to raise with me at this point in time?

PN12

MR AGNEW: No, Commissioner, just make you aware that we were seeking initially a designation and I just make some slight submissions on that. My client's operation is a video store, which would fall within the ordinary definition of a shop and in my view, or in my submission would fall within, for the purposes of designation of the most relevant award, what's colloquially referred to as the Victorian Shops Award, the federal award and we'd ask for that matter to be dealt with initially and then I just might say some brief things about the agreement itself, Commissioner.

PN13

THE COMMISSIONER: Thanks, Mr Agnew. Yes, I've received the application in relation to the designation of an appropriate award. It doesn't appear to me that there is a common rule award which has application and that therefore it is appropriate to designate one. I'm also satisfied that, given the nature of the business that the Shop, Distributive and Allied Employees Association of Victoria and Shops Interim Award 2000 is an appropriate award for the purposes of these proceedings and I will designate that award to be the appropriate award. In relation to the application itself, perhaps it might be useful for me, Mr Agnew if I just had a little bit - I've got the statutory declarations but in relation to the process by which the agreement came about that if you wanted to give me some information, some further information on that or perhaps I can ask Mr Peng or
Ms Mills in relation to that.

PN14

MR AGNEW: In relation to the process itself, Commissioner, basically an agreement was drafted by myself together with Mr Peng. That agreement was then presented to the staff. They were asked for feedback on that agreement, in fact feedback forms were handed out to all the staff with respect to that and in fact, not in Mr Peng's case but in other cases, there were some changes to the agreement as a consequence. But fundamentally, after an agreement was finalised I attended some discussion with the staff and basically gave them a PowerPoint presentation of, first of all what enterprise bargaining was about, how it compared to other agreements in similar types of environments, for instance we did an examination of the Blockbuster Video Agreement and compared it to this particular agreement because they're both video stores.

PN15

I also talked about the process with the staff - the fact that they must be given notice of a ballot, that they could request union representation and basically if they wanted to give any further feedback they could. As a consequence of that the parties agreed to the final version of the agreement, it was then put to the staff for a vote. The ballot was a secret ballot where it was conducted, in fact, by Ms Mills in terms of - she was the returning officer for the ballot and a valid majority of the employees agreed to the agreement. I should also point out that at the same time I handed out a comparison document between the award and the agreement and also handed out a copy of the PowerPoint presentation that I went through with the staff.

PN16

THE COMMISSIONER: These are attachments to the statutory declaration.

PN17

MR AGNEW: That's correct, C and D I think to both statutory declarations.

PN18

THE COMMISSIONER: Yes, thank you. I just have a couple of questions for Ms Mills. You received a notice on 17 April, I think to say that the company wished to enter into this agreement and that there would be a ballot conducted.

PN19

MS MILLS: Yes.

PN20

THE COMMISSIONER: You were present when Mr Agnew made the presentation and you also received a copy of the information that he's referred to in relation to that?

PN21

MS MILLS: Yes.

PN22

THE COMMISSIONER: Were people given the opportunity to ask questions about the agreement?

PN23

MS MILLS: They were, yes.

PN24

THE COMMISSIONER: Did they ask any?

PN25

MS MILLS: Lots, yes.

PN26

THE COMMISSIONER: They did? Good. After that presentation did they also have other opportunities to ask questions if they wished to?

PN27

MS MILLS: We had a lot of discussions about the whole concept of the new certified agreement.

PN28

THE COMMISSIONER: So you were satisfied that you understood what it meant and were you satisfied that other people did?

PN29

MS MILLS: Yes.

PN30

THE COMMISSIONER: Thanks, Ms Mills, I don't have any further questions. Is there anything further you wanted to put to me, Mr Agnew, apart from the undertakings which are in writing and which I will take into account?

PN31

MR AGNEW: No, Commissioner, that's all. I'd just simply submit that if you look at the material that's been provided to you, in my submission they meet the statutory requirements of the Act. If they don't, then the undertakings may further satisfy you in order to approve the agreement under section 170LT.

PN32

THE COMMISSIONER: I also note that there is a replacement page that's been provided in relation to page 14 of the agreement and that in the certification process the parties wish that to be substituted for the current page. Is that correct?

PN33

MR AGNEW: That's correct.

PN34

THE COMMISSIONER: Thanks very much. As I've indicated, I have read all this documentation and I have had some correspondence with Mr Agnew in relation to it. I did express some concerns about some aspects of the agreement. Some of those matters Mr Agnew has satisfied me of, other matters in my view I felt required the need for some undertakings as to how they were going to operate. Those undertakings have been provided in writing to the Commission and I understand, Mr Peng you give those undertakings on behalf of the company. Thank you. Subject to the undertakings, I'm satisfied that I should now proceed to certify this agreement. The agreement will be certified as and from today's date. I will issue a certificate which will indicate to the effect that the agreement has been certified and I believe that the agreement is to operate for three years from the date of certification, is that correct?

PN35

MR AGNEW: That's correct Commissioner, yes.

PN36

THE COMMISSIONER: So that's what the certificate will say and you will receive copies of that shortly.

PN37

MR AGNEW: Sorry, Commissioner, I think the nominal expiry date is a little bit less than three years. I apologise, it's - the nominal expiry date is 1 April 2008 but it is to operate from date of certification.

PN38

THE COMMISSIONER: From date of certification, right. So, it will operate - here it is, yes, it will operate until 1 April 2008. So the certificate will indicate that that is, it will operate from the approval of the agreement which is today until 1 April 2008 and I'll send you those certificates. Thanks everybody for your attendance this morning.

<ADJOURNED INDEFINITELY [10.18AM]