AG2005/656, Transcript of Proceedings [2005] AIRCTrans 1706 (12 August 2005)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 12410-1

COMMISSIONER GRAINGER

AG2005/656

APPLICATION BY RIDDERS FRESH PTY LTD
s.170LK - Agreement with employees (Division 2)
(AG2005/656)

MELBOURNE

2.43PM, THURSDAY, 04 AUGUST 2005

PN1

MS S WILLEKES: I seek leave to appear on behalf of Ridders Fresh Pty Ltd.

PN2

THE COMMISSIONER: And Ms Emerson here as well, is that right?

PN3

MS WILLEKES: Yes.

PN4

THE COMMISSIONER: Is she appearing, you are doing the appearance?

PN5

MS WILLEKES: I am doing the appearance. If I need assistance with the
no disadvantage test - - -

PN6

THE COMMISSIONER: No, that is fine. All right. Okay and you have got an employee representative here.

PN7

MS WILLEKES: We do.

PN8

THE COMMISSIONER: Mr O'Kelly as well as Mr Fothergill, is that correct?

PN9

MS WILLEKES: Yes that is right.

PN10

THE COMMISSIONER: Yes. All right. Okay that is fine. Yes and now if you would run me through it Ms Willekes.

PN11

MS WILLEKES: If the Commission pleases before you is an application for certification of an agreement pursuant to section 170LK of the Workplace Relations Act. Perhaps it is first pertinent to deal with the section 170XF application.

PN12

THE COMMISSIONER: Yes.

PN13

MS WILLEKES: The XF application was filed out of an abundance of caution. We appreciate that both awards have been declared common rule, however there are several classifications which would extensively fall outside of those awards and we would seek designation or direction from the Commission that - - -

PN14

THE COMMISSIONER: Well I will designate them I think is probably the most cautious action.

PN15

MS WILLEKES: Thank you. First we would seek designation then of the Clerical and Administrative Employees Award. An amendment to the directions that were filed with the Commission, we have initially stated that the general manager was the additional classification to be covered by this award, but it also appears that the sales manager should be covered by the Clerical and Administrative Employees Award, that this is the most appropriate award.

PN16

THE COMMISSIONER: All right I will designate the Clerical and Administrative Employees Victoria Award 1999 for the purposes of the - is it the general manager or the chief executive?

PN17

MS WILLEKES: General manager and the sales manager.

PN18

THE COMMISSIONER: The general manager and the sales manager's position. Yes thanks.

PN19

MS WILLEKES: Thank you. With regards to the Federal Meat Industry Smallgoods Award we would seek designation of that award insofar as the production manager and the quality assurance manager are concerned.

PN20

THE COMMISSIONER: Yes and I do so designate the Federal Meat Industry Smallgoods Award 2000 so far as it relates to the quality assurance manager.

PN21

MS WILLEKES: And the production manager.

PN22

THE COMMISSIONER: And the production manager. Good. Thanks.

PN23

MS WILLEKES: Thank you, Commissioner. The agreement before the Commission we say meets the requirements of the Act that the Commission pursuant to section 170LT is in a position to certify the agreement on the grounds that the no disadvantage test have been met. Does the Commission require that I take you through aspects of the no disadvantage test?

PN24

THE COMMISSIONER: No, thanks.

PN25

MS WILLEKES: In relation to the agreement in substance, the Commission must be satisfied that section 170LK has been met and the subsections within that section. In particular the company has gone through an extensive period of consultation with its employees. Some four notices of intention have been submitted. There are in excess of nine meetings where employees had the agreement explained to them. The Commission will be aware that there was an inconsequential amendment made on 20 July just prior to the final voting meeting which arose out of directions from the Commission to amend Electrolux. We would say that that amendment was purely to remedy a question of interpretation such that the agreement did not offend Electrolux and was done out of an abundance of caution.

PN26

In that regard we say that there was no breach of section 170LK(8) and there has been substantial compliance with the provisions of section 170LK in general. If the Commission pleases the valid majority made the agreement on 20 July in that some 37 employees voted of which 20 voted in favour and 17 voted against. Therefore there was a clear valid majority. We also say that the agreement in its current form which has been filed with the Commission and that was voted on does not offend any of the provisions arising out of the Electrolux decision of the High Court, and that any provisions which potentially could have offended have since been removed and approved by a valid majority of employees.

PN27

We would also say that the notices of intention in each ….. that they were provided to employees contained a statement that if they so - well in accordance with the Act it virtually repeats the words of the Act that if it had a member, an organisation or employees meet with, confer with Ridders Fresh. No such request was ever made. In all instances Ridders Fresh sought to have a transparent and open process with its employees and make sure that they understood the terms of the agreement. They understood what was happening and that all the employees genuinely made the agreement. Does the Commission have any questions or wish to - - -

PN28

THE COMMISSIONER: No. I have no questions of you. I would just like to hear from Mr O'Kelly thanks very much. Mr O'Kelly, no need for you to stand just pull that microphone towards you though just so that the transcript can hear. Mr O'Kelly, welcome to the Commission. You have got an important role. You are speaking for the employees. Can you just tell me a bit about the consultation process and how you feel the employees felt about the whole process and the outcome.

PN29

MR O'KELLY: It started way back in March and the Ridders Fresh company came to their staff and put information up for everyone to go onto the certified agreement and they took - Herb the solicitor came and explained the contract and we got a proposed format of the contract to take away and have a look and come back and ask questions to either Geoff or the senior management or the supervisors of the company. Then we, I think the first meeting was like 14 days after, we had a chance to bring up any points of what - of the agreement and any changes that they would like to make and then we had further talks with Herb asking - Herb got probably half a dozen of us and had a chat to us to go through all the changes and what the staff wanted, like conditions, wages, their hours, what was the major concern.

PN30

A lot of the staff have got family and they didn't really want to work on Saturdays as part of the award so, yes, so he clarified all the bits and pieces, what the staff had queries over and then we went to another vote. I am not exactly sure what date. Then the fourth notice came out asking to go over the instructions and then we had a final vote on 20 July and Herb was present and he just went through what the changes were and to have our feedback and then we had a final vote.

PN31

THE COMMISSIONER: And there was a majority voted in favour is that right?

PN32

MR O'KELLY: Yes and I was present with Herb and Geoff counting the votes and - - -

PN33

THE COMMISSIONER: All right. Good. So you felt it was all fair and above board.

PN34

MR O'KELLY: Yes.

PN35

THE COMMISSIONER: Thank you very much for that, Mr O'Kelly. Good. Well I am satisfied on the basis of the written submissions and the submissions made before me today that the Ridders Fresh Certified Agreement meets all the relevant statutory requirements for certification. I note the term of the agreement at clause 3.1 doesn't exceed three years. In fact it will be from certification for three years. There is an appropriate dispute resolution procedure set out at clause 25. The agreement appears to provide advantages over the award. I note in particular the provisions of clauses 6, 8, 10, 11 and 12 and accordingly I do certify this agreement today, 4 August 2005. I thank the parties for their submissions and I now adjourn.

<ADJOURNED INDEFINITELY [2.52PM]