C2004/4784, Transcript of Proceedings [2005] AIRCTrans 1700 (11 August 2005)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 12375-1

SENIOR DEPUTY PRESIDENT WATSON

C2004/4784

APPLICATION BY SHOP, DISTRIBUTIVE AND ALLIED EMPLOYEES ASSOCIATION
s.141 - Common rules
(C2004/4784)

MELBOURNE

10.31AM, MONDAY, 01 AUGUST 2005
EXTRACT OF TRANSCRIPT OF PROCEEDINGS

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<EXTRACT OF TRANSCRIPT OF PROCEEDINGS [11.18AM]

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PN1

THE SENIOR DEPUTY PRESIDENT: Yes, Ms Ralph.

PN2

MS RALPH: Your Honour, in regards to the aspect of the retail, clearly there was a potential for overlap between our industry and the shops. We are seeking to have the insertion of the Federal Vehicle Industry Repair, Services and Retail Award put in at 4.7 to make it clear that there is going to be no potential overlap between the two awards.

PN3

THE SENIOR DEPUTY PRESIDENT: That has been declared a common rule award, the Vehicle Repair, Services - - -

PN4

MS RALPH: Yes, it is, your Honour.

PN5

THE SENIOR DEPUTY PRESIDENT: Very well. That is all you wanted to put?

PN6

MS RALPH: Yes.

PN7

THE SENIOR DEPUTY PRESIDENT: Thank you. Mr Klemis.

PN8

MR KLEMIS: Thank you, your Honour. Your Honour, in Mr Ryan's summary, he did refer to employee who basically occasionally did some work. We are not talking about that. The industry is made up of many people. For instance, they may come on at 7 o'clock in the morning, they then work in the production area and having worked there, as the customers come into the shop, they leave their production work and go out and attend and you could have a situation where you have got two employees and one will remain in the shop whilst it is quiet and the other will, in fact, adjourn to the production area and perform duties.

PN9

What we are saying, your Honour, is that the declaration as it stands has to be interpreted in regards to its enforcement. Now, we get no joy in placing an interpretation on the declaration itself. In fact, we would say that the declaration would cause more confusion for people such as Wagenet and DEWR who have a different interpretation.

PN10

What we are looking for is that employees who are in fact required on a regular pattern to perform work that either comes under the Pastrycooks Award or the Bread Trade Award, that they and the agreement, despite what Mr Ryan might say, it is quite clear in my mind that it was to be any work performed that is covered and, in fact, we even got down to splitting straws on the point of slicing bread.

PN11

If the bread was sliced at the specific request of a customer, that formed part of customer service and did not alter the status of that employee. If that person who would be performing customer service is required to slice the bread before it was packaged or before it went to the shop, the slicing of that bread in our submission would undoubtedly come under the Pastrycooks Award or the Bread Trade Award and those are a slight distinction, your Honour, that the Pastrycooks Award goes beyond the Bread Trade Award.

PN12

The Pastrycooks Award covers, if I can just refer to the definition, the Pastrycooks Award in regards to the pastrycook tradesperson:

PN13

Means an employee who has completed an apprenticeship in the trade of pastrycooking and who exercises that trade in making cake, pastry goods or yeast raised products.

PN14

Or yeast raised products. That is specifically referring to bread. The Shop, Distributive and Allied Employees Association has made application for the Shop, Distributive and Allied Employees Association Victorian Shops Interim Award 2000 to be declared common rule. At a conciliation conference presided by your Honour on 19 October 2004, there was an agreement between the SDA and the Baking Industry Association of Victoria and there were certainly no objections by any of the other parties present which included VECCI, AIG, ARA and LHMU.

PN15

In fact, LHMU supported this, even to the point of saying that which was the appropriate award, the Pastrycooks or the Bread Trade Award and it was at that point in time, it wasn't a concern of the matter that was in progress, but we did make the point that if it was purely a bread shop, then it would be the Bread Trade Award, if it was bread and pastry, it would be the Pastrycooks Award.

PN16

THE SENIOR DEPUTY PRESIDENT: And that went to the issue for the declarations of those two awards.

PN17

MR KLEMIS: Yes. It is perhaps irrelevant to the matter here, your Honour. In many of these discussions and negotiations, we come away with different views, but it is clear in my mind that agreement was reached on this matter and we were certainly supported by the correspondence and many telephone conversations.

PN18

What Mr Ryan has said is correct, that he wasn't given consent to the proposal, but in the event of you accepting the words satisfied the concerns of the parties, he would not object. I believe Mr Ryan does not dispute that agreement was reached, that the declaration would exclude employees who are required to perform any duties that went beyond that of pastrycooks and came under the Pastrycooks Victoria Award or the Bread Trade Victoria Award.

PN19

In fact, the SDAs position has been that the declaration does in fact honour those undertakings. The BIAV sought counsel's advice on the wording of the declaration and is of the view that whilst the wording in the declaration may have the intention of excluding employees who are required to perform any duties that went beyond that of customer service and came under either the Pastrycooks Award or the Bread Trade Victoria Award, we say that is the intention, but we say the declaration itself is pitted with ambiguities and does not address these concerns.

PN20

THE SENIOR DEPUTY PRESIDENT: Do the bread trades, the pastrycooks' declaration deal with an exemption in respect of purely retail work?

PN21

MR KLEMIS: It was basically on transcript, not on the declaration itself. Certainly from our point of view, we would have preferred it in the declaration itself, but it was on transcript, I say in the Pastrycooks Award, but I certainly don't recall Mr Ryan making any submission under the Bread Trade Award at all.

PN22

THE SENIOR DEPUTY PRESIDENT: But in respect to the declaration presently before me, he repeats and adopts the position put to Commissioner Whelan.

PN23

MR KLEMIS: I am sorry, your Honour?

PN24

THE SENIOR DEPUTY PRESIDENT: In respect to the present application, the retail declaration, Mr Ryan has repeated and adopted the terms of the agreement between his union and the LHMU for the purpose of the operation of the retail declaration.

PN25

MR KLEMIS: Yes, your Honour, I concede the - there are two issues, really, and one is if we are talking demarcation and maybe that be the prime purpose of the common rule, but from certainly BIAVs perspective, it is a case of within the industry. Now, it is a nonsense to say because the rates are considerably lower. The problem that the bakers and pastrycooks face is that, well, perhaps a gentleman walks in and gets a position in the front of the shop without any experience whatsoever and cannot be classed as less than level 4 in normal terms.

PN26

In other words, I am going on to issues that your Honour might say, well, that doesn't really deal with the declaration. It has been said that it is a money issue. We are saying that we have people on the production side of things who have to spend years to get to that level, that one level below that of a tradesperson. A person could take years to become a cake decorator. A cake decorator is one of the most - - -

PN27

THE SENIOR DEPUTY PRESIDENT: Well, I don't think that issue really arises here, does it? Mr Ryan and the declaration itself certainly doesn't purport to cover that type of work.

PN28

MR KLEMIS: No, but you could have that person who is in fact working and goes out to the shop occasionally to assist. What we are saying is if the employee is required to perform work on any form of regular basis of work that comes under one of the two bakery awards, the agreement that we reached was that employee would be covered by those awards.

PN29

THE SENIOR DEPUTY PRESIDENT: And that has been reiterated by Mr Ryan today.

PN30

MR KLEMIS: But there is nothing in the declaration, your Honour, and the people that I have spoken with in the Department of Employment, Workplace Relations and they say we are not concerned with what was intended or what may be in transcript. We can only read what is in the declaration.

PN31

THE SENIOR DEPUTY PRESIDENT: Why wasn't the corresponding declaration, corresponding exemption in respect to purely retail work or purely retail functions placed within the bread trades if there is a concern about the overlap?

PN32

MR KLEMIS: The bread trade - - -

PN33

THE SENIOR DEPUTY PRESIDENT: Or the pastrycooks.

PN34

MR KLEMIS: - - - doesn’t get a mention in the declaration and certainly the employers that I represent are small business and unless they can see something in that declaration relating to their particular industry, it - - -

PN35

THE SENIOR DEPUTY PRESIDENT: What words are you proposing, Mr Klemis?

PN36

MR KLEMIS: Well, certainly they are negotiable, your Honour.

PN37

THE SENIOR DEPUTY PRESIDENT: Where do you start from?

PN38

MR KLEMIS: Well, our first proposal to Mr Ryan is that the bakery industry be included in point 4 and I understand Mr Ryan has said, barley, Charlie, that is not on.

PN39

THE SENIOR DEPUTY PRESIDENT: Well, that is far too broad, isn't it?

PN40

MR KLEMIS: Yes, and we have no argument with that, because it is broader than what was agreed upon, so what we are saying is that a new clause should be introduced and to remove - to read after this style, to remove any ambiguity, this declaration excludes persons engaged in customer service in bakery outlets where the employer is bound by the Pastrycooks Victoria Award or the Bread Trades Victoria Award who are required to carry out any work whatsoever under those awards that goes beyond that of customer service.

PN41

What we are saying is that required to work on a regular basis, something after that style, would certainly not be what we are after, but it would go a long way to satisfy some of our concerns. It has been accommodated in other areas and, in fact, Mr Ryan in another matter said that clarity was - I will provide the transcript if necessary - clarity was important and your Honour certainly agreed with
Mr Ryan and said, yes - should I take you to the exact transcript, your Honour.

PN42

THE SENIOR DEPUTY PRESIDENT: Please yourself, Mr Klemis.

PN43

MR KLEMIS: And the issue that was raised, it was in the National Fast Foods Award, the issue that was raised was that - simply put, it was an issue of clarity and this was the wording that I am referring to, the Senior Deputy President:

PN44

Clarity is always desirable.

PN45

And, your Honour, if it is achievable, it should be achieved from the outset and not when the balloon goes up. In regards to the order of the Cheesecake Shops that came before your Honour, Mr Ryan and I did much soul-searching for the appropriate words and the words used on that occasion in that order was:

PN46

This excludes employees whose duties include words that are covered by the Pastrycooks Victoria Award other than customer service.

PN47

Now, we were able to reach those words on that occasion and we do not accept that it was a time matter that prevented - a time constraint or restraint that prevented Mr Ryan from coming up with the appropriate wording. In our discussions, it was agreed that if I could come up with the wording that would satisfy your Honour and not be offensive to Mr Ryan, he would not object to it going into the declaration. Now, that is our position.

PN48

We say that, in fact, the wording to clarify the position and remove the ambiguity could be of assistance to Mr Ryan's Association's interests, because as it stands now, the wording could, in fact, from counsel's opinion, exclude persons who are in fact strictly salespersons and we rely on the dot points under 4.5 to say that in the preparations, sale or handling and/or delivery of meals, snacks and/or beverages, well, if pies and pasties are considered to be meals or snacks, that could work we say to Mr Ryan's disadvantage in our counsel's interpretation.

PN49

If it is regarded as take-away food, well, again that could be excluded from the declaration. We believe that some simple, fairly simple wording such as employees who are required on a regular basis to perform work that comes under the Pastrycooks Award or the Bread Trades Award would be excluded from this declaration.

PN50

We also say that certainly the principles that were enunciated in this Commission deals with a minimum of awards and we say that this doesn't quite address that issue. You are not going to have a workforce - you may have 99 per cent or 95 per cent or 90 per cent of the workforce and the others form into pastrycooks.

PN51

The proposal, your Honour, that is open to being changed, reworded, but our members are small businessmen, they are not legal people who can interpret what the declaration means and we say it would be contrary to the public interest not to have a more meaningful and understandable declaration than what has been presented here.

PN52

I certainly had some great difficulty in understanding it myself and, well, I would suggest that the pastrycook or the baker would be much more disadvantaged without having the experience of interpreting awards. I know Mr Ryan has indicated that he would like the matter dealt with today. We are happy for that and if Mr Ryan and your Honour is prepared to meet with us to come up suitable wording, we would recommend that that is a step forward.

PN53

THE SENIOR DEPUTY PRESIDENT: I wonder if you could just repeat for me the exemption in the Fast Food Award, or the declaration?

PN54

MR KLEMIS: It just says:

PN55

This order comes into force from the first pay period to commence on or after 24 March 2005 shall remain in force for a period of six months. This order excludes employees whose duties include work that is covered by the Pastrycooks Victoria Award 1999, other than customer service.

PN56

THE SENIOR DEPUTY PRESIDENT: Whose work is?

PN57

MR KLEMIS: Whose duties include work that is covered by the Pastrycooks Victoria Award 1999, other than customer service.

PN58

THE SENIOR DEPUTY PRESIDENT: Is customer service included in those awards?

PN59

MR KLEMIS: In the Pastrycooks Award? Yes, your Honour.

PN60

THE SENIOR DEPUTY PRESIDENT: Would that have the effect of providing any clarity?

PN61

MR KLEMIS: I am sorry?

PN62

THE SENIOR DEPUTY PRESIDENT: Would that have effect of providing any clarity in this case?

PN63

MR KLEMIS: With that exact wording?

PN64

THE SENIOR DEPUTY PRESIDENT: Yes.

PN65

MR KLEMIS: Well, yes, that would go a long way to meeting our needs and certainly it would assist the small businessman, the small baker or the small pastrycook who doesn't have HR resources.

PN66

THE SENIOR DEPUTY PRESIDENT: Very well.

PN67

MR KLEMIS: If the Commission pleases.

PN68

THE SENIOR DEPUTY PRESIDENT: Thank you.

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