AG2005/6107, Transcript of Proceedings [2005] AIRCTrans 2311 (8 November 2005)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 13289-1

COMMISSIONER WHELAN

AG2005/6107

APPLICATION BY BERINGER BLASS WINE ESTATES LTD
s.170LK - Agreement with employees (Division 2)
(AG2005/6107)

MELBOURNE

10.09AM, TUESDAY, 25 OCTOBER 2005

PN1

MR B RICHARDSON: I appear on behalf of Beringer Blass Wine Estates Ltd. Commissioner, I also appear with several representatives from the company, from the site specifically. In particular I would like to introduce MR G SCHMIDT who is the employee representative.

PN2

THE COMMISSIONER: Thank you. Mr Richardson, I have received in relation to this application a copy of the agreement and statutory declarations that have been made by Mr Schmidt and Mr Knight in support of the application. The agreement refers to the fact that, the statutory declarations rather refer to the fact that the employees were provided with a copy of or a draft of the document on 5 September. The statutory declarations don't have attached the notice that was provided to the employees.

PN3

MR RICHARDSON: Yes I was alerted to that just before the hearing started, Commissioner, but in any event it was my intention to tender for the Commission's information a copy of the letter that was distributed to employees so if I could formally tender that.

PN4

THE COMMISSIONER: Yes certainly. This doesn't have a date on it.

PN5

MR RICHARDSON: No it was dated the, it was actually issued on 5 September.

PN6

THE COMMISSIONER: It was. So it was issued with the agreement.

PN7

MR RICHARDSON: With the agreement itself.

PN8

THE COMMISSIONER: All right then. The notice given to the employees in accordance with the provisions of section 170LK(2) will be BD1.

EXHIBIT #BD1 NOTICE GIVEN TO EMPLOYEES

PN9

MR RICHARDSON: Thank you, Commissioner. Commissioner, the application before you is made under Division 2 of Part VIB of the Act pursuant to section 170LK of the Act for the certification of an agreement known as the Fosters Wine Estate Wolf Blass Enterprise Agreement 2005-2008. The actual employing entity is Beringer Blass Wine Estates Ltd and the agreement itself is intended to apply to the company's operations located at 97 Sturt Highway, Nuriootpa in South Australia. The agreement itself applies to employees who are located at this site who are actually covered by several South Australian state awards.

PN10

THE COMMISSIONER: Yes.

PN11

MR RICHARDSON: And they are namely the Wine & Spirits Stores Industry South Australia Award, the Clerks South Australia Award and also the Metal Industry South Australia Award. The employees concerned have previously been covered by registered state agreements so this is a new agreement in the Federal jurisdiction and will operate to replace the existing state agreement which had a nominal expiry date of 30 September of this year and was intended to operate hereafter. Commissioner, it would be our submission that in relation to the agreement itself and in relation to our application that we have met all the formal requirements of the Act, regulations and rules of the Commission in making the agreement and this is as attested to in our supporting documentation and in particular including the statutory declaration.

PN12

Commissioner we have tendered a copy of the letter that was issued to employees prior to or at the same time as the proposed agreement. It was circulated to employees and as the Commission will note the wording in that letter essentially replicates the wording that appears in sub section 2 of section 170LK of the Act. In addition, Commissioner, we submit that the agreement generally meets the requirements of section 170LT of the Act.

PN13

Specifically we submit that the agreement meets the no disadvantage requirements as required under sub section 2 of section 170LT and we further submit, Commissioner, that in relation to the requirements under section 170LT sub section 6 that, and as attested to in our supporting declaration the proposed agreement was approved by a valid majority of employees who were intended to be covered by the agreement and that vote if you like took place on 20 September of this year and this followed extensive consultation with employees during the course of that previous 14 day period itself and also, which obviously also came on top of or after discussions with employees generally around the terms of the agreement.

PN14

Finally, Commissioner, we submit that the agreement itself contains a settlement of disputes procedure provision which appears at clause 12 of the document as required under sub section 8 of section 170LT and also a nominal expiry date which appears at clause 5 of the agreement and that is namely 30 September 2008 and that conforms with the requirements of sub section 10 of section 170LT. Commissioner, that is really it in terms of our formal submission. Unless the Commissioner has any specific questions regarding the agreement or the process in relation to the making of the agreement we would otherwise rely on the details submitted in the statutory declaration and respectfully request the Commission to certify the agreement as presented.

PN15

THE COMMISSIONER: Thanks, Mr Richardson. I notice in appendix A to the agreement that you have set out there the wage rate increases for the different categories of employees that are covered by the award, that are covered by the agreement sorry and it is apparent that in relation to the rates of pay there is certainly no disadvantage. The statutory declaration so that there is no reductions in all, does that mean that there are no reductions in relation to any of the conditions as well?

PN16

MR RICHARDSON: That is my understanding, Commissioner.

PN17

THE COMMISSIONER: All right then. Okay then.

PN18

MR RICHARDSON: There is no debt reduction in any of the terms or as it appears in the context of the underwriting awards.

PN19

THE COMMISSIONER: Okay. All right then. Thanks, Mr Richardson. Well I will just ask Mr Schmidt a couple of questions if I can, Mr Schmidt. Is this a radical departure from the previous agreement or is it are some of the matters in it consistent with what the previous conditions have been?

PN20

MR SCHMIDT: Commissioner, this is not a radical departure this is just in following procedures of the finalisation of one agreement and flowing into a new agreement to be set up.

PN21

THE COMMISSIONER: Okay. So in terms of explaining the agreement to the employees, a number of the things in here would have been familiar to them because they were in the previous agreement is that the case?

PN22

MR SCHMIDT: That is correct, Commissioner.

PN23

THE COMMISSIONER: Okay then. All right and so the process was that the agreement was circulated and there were meetings to discuss it.

PN24

MR SCHMIDT: That is correct, Commissioner.

PN25

THE COMMISSIONER: And people were given the opportunity to ask questions at those meetings?

PN26

MR SCHMIDT: That is correct.

PN27

THE COMMISSIONER: And I presume that some of them did?

PN28

MR SCHMIDT: Yes there were some questions asked.

PN29

THE COMMISSIONER: Okay. All right and you are satisfied from your experience of that, that people understood what it was that they were voting for?

PN30

MR SCHMIDT: That is correct.

PN31

THE COMMISSIONER: Okay then. All right thanks, Mr Schmidt, you can be seated. Thank you. All right. Thank you for your attendance here today. You have obviously come a long way but presumably that was at your choice. I hope you are going to find something else interesting to do while you are in Melbourne. I have read the documentation that has been lodged in support of this application and also a copy of the letter that was circulated to the employees.

PN32

It appears from that documentation that all of the statutory requirements for certification of the agreement have been met and that there is no reason why I shouldn't proceed to certify the agreement. The agreement will be certified from today's date. It will have a nominal expiry date of 30 September 2008 and I will issue certificates which will be provided to you which indicate that the agreement has been certified and those are the dates that it will have operation and enjoy the rest of your time in Melbourne.

<ADJOURNED INDEFINITELY [10.19AM]

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #BD1 NOTICE GIVEN TO EMPLOYEES PN8