AG2004/8044, Transcript of Proceedings [2005] AIRCTrans 220 (1 February 2005)

1800 534 258

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 10113

COMMISSIONER WHELAN

AG2004/8044

s.170LK - agreement with employees (division 2)

APPLICATION BY WOK IN A BOX AUSTRALIA PTY LTD
(AG2004/8044)

MELBOURNE

2.06PM, WEDNESDAY, 19 JANUARY 2005

PN1

MR D D'ARCY: I seek leave to appear on behalf of Wok in a Box Australia Proprietary Limited together with MR S BROWN, as an employee rep MS S WALH.

PN2

THE COMMISSIONER: Thank you, Mr D'Arcy. There is two applications before me, one is an application for the designation of an appropriate award for the purposes of dealing with the application for certification of the agreement. I think that in the interim period that award may, in fact, have been made a common rule for the state of Victoria so it may, in fact, now be a relevant award rather than the requirement to designate it but, from abundance of caution, I will deal with the application in terms of as it's been made, Mr D'Arcy.

PN3

MR D'ARCY: Certainly, Commissioner. We are in that transition phase at the moment so we're well aware of that, and we made the application on the basis that it hadn't happened yet, obviously. The application itself is supported by a stat dec from Mr Paul Morrissey, which goes to meeting the requirements of the Act and became , effectively, that it is an appropriate award. The National Fast Food Award does regulate terms and conditions of employment of employees who do similar work.

PN4

THE COMMISSIONER: Work in similar businesses, yes.

PN5

MR D'ARCY: Work in similar businesses. That's shown by the respondency list to that particular award where there are fast food establishments. This particular establishment in and of itself, and the establishments covered by this proposed agreement, have very little sit down area, they are primarily take away shop fronts, if it pleases, and the work being done, there are no chefs as such, the employees operate both as cooks and retail assistants.

PN6

THE COMMISSIONER: Right. So the food is prepared on the site?

PN7

MR D'ARCY: It is.

PN8

THE COMMISSIONER: And served on the site primarily or exclusively to customers doing counter service, is that right?

PN9

MR D'ARCY: Primarily. There are some limited seating where people sit but mostly they're stools so the area is normally very small, but they are a shop fronts as such.

PN10

THE COMMISSIONER: Yes. So it's generally that people come in, order from the counter, are served by the assistants, the food preparation occurs behind them presumably?

PN11

MR D'ARCY: Yes. Directly behind them in most cases. You can see the woks from the counter.

PN12

THE COMMISSIONER: Okay. And the people then are provided with the food in takeaway containers?

PN13

MR D'ARCY: That's correct.

PN14

THE COMMISSIONER: All right, thanks very much. Well, on the basis of the information that is contained in the statutory declaration and the information that is before the Commission today, I am satisfied that, to the extent that it's necessary to do so, that the National Fast Foods Retail Award 2000 should be designated as an appropriate award for the purposes of the no disadvantage test in relation to this application. I will proceed, Mr D'Arcy, to deal with the application for certification of the agreement. In relation to that I think I have received information in relation to the statutory declarations that have been made. I also received, in response to a request made from my office, copies of the rosters for, I'm assuming, a fairly typical period in the operation of the business.

PN15

MR D'ARCY: They were effectively start up rosters. These are new businesses so there is still a period of settling down. What we indicate to the Commission is that at the back of the document, as you can see in appendix 2, the review of the hourly loaded rate which those undertakings go to.

PN16

THE COMMISSIONER: That's right.

PN17

MR D'ARCY: We have had consultation with our client and we believe those are the right hours we can roster inside of or well inside of, so those rosters that you received were really start up rosters as the operations were just finding their feet, I should say.

PN18

THE COMMISSIONER: But it's the intention that while the rosters may vary they would still fall within the parameters of the hours as set out in that appendix 2.

PN19

MR D'ARCY: That's correct. And if there is any anomaly where an employee would work in excess of those hours, then there would be a correction in relation to those rates.

PN20

THE COMMISSIONER: All right then. Okay, thank you very much. Well, I am assuming that I have all the information therefore on the file. I have also received, or it's been handed up to my associate today, a further statutory declaration by Mr Morrissey in relation to the date of lodgement of the application, and also the undertaking in relation to the operation of the appendix 2 of the material that was sent to me. Is there any further material that you wish to put to me in relation to the application?

PN21

MR D'ARCY: No, Commissioner. Just to formally make the application for the extension of time, if it pleases.

PN22

THE COMMISSIONER: Thank you. Mr Brown or Ms Walsh, do you have anything that you wanted to add to that? I presume that you did receive the document headed, The Overview of Proposed Certified Agreement, and were able to ask questions in relation to that series of overheads?

PN23

MS WALSH: Yes, Commissioner, we did.

PN24

THE COMMISSIONER: And you feel that you understood what was in them and what was being proposed?

PN25

MS WALSH: Yes, to the full extent.

PN26

THE COMMISSIONER: All right, thank you. Well, do either of you wish to add anything to what has been put? Mr Brown?

PN27

MR BROWN: No, Commissioner.

PN28

THE COMMISSIONER: You're happy? Everybody's happy?

PN29

MR D'ARCY: No, Commissioner.

PN30

THE COMMISSIONER: All right. Well, thank you. Well, I have had the opportunity to read the documentation that's been lodged. I am satisfied that the appropriate notice was given to the employees and that the appropriate information in relation to the implications of approving this agreement was also given to the employees. Further, in relation to the issue of whether the agreement passes the no disadvantage test, I have had the opportunity to read the documentation provided in relation to rosters and, in particular, to the document, appendix 2 to that roster headed Review of Hourly Rate, and the provisions of that. On the basis of that, and also on the basis of the undertaking that's been given by the company, I a satisfied that it's appropriate for me to certify this agreement.

PN31

The agreement will be certified as and from today's date in accordance with its own terms, the nominal expiry date is 1 November, 2007. The agreement will continue to operate beyond that date unless it's otherwise varied or it's replaced by another agreement. It can also be varied or replaced by another agreement during its life using the same process that was used to have this agreement considered and approved by the employees. And I think that that completes the formalities. Thank you for your attendance and than you Mr D'Arcy for the paperwork.

PN32

MR D'ARCY: Thank you Commissioner.

<ADJOURNED INDEFINITELY [2.14PM]