C2005/4872, Transcript of Proceedings [2005] AIRCTrans 2320 (8 November 2005)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 13296-1

COMMISSIONER WHELAN

C2005/4872

APPLICATION BY VICTORIAN AUTOMOBILE CHAMBER OF COMMERCE
s.113 - Application to vary an Award
(C2005/4872)

MELBOURNE

10.02AM, WEDNESDAY, 26 OCTOBER 2005

PN1

MS P RALPH: Your Honour I appear on behalf of the Victorian Automobile Chamber of Commerce and with me MS L YILMAZ.

PN2

THE COMMISSIONER: Thank you, Ms Ralph. It appears that you're the only appearance this morning in relation to this matter. I think that there was an order made in relation to substituted service, I believe, in relation to this matter so perhaps we might start off by dealing with the issue of service of the documents.

PN3

MS RALPH: Yes, Commissioner. In the initial stages I did write to the union, the SDAEA, to seek consent in this matter to have these two members removed. They initially advised that they wouldn't be amenable to consent so hence this application. Substituted service I did apply for and complied with the rules and I can tender these ..... of our evidence.

EXHIBIT #VACC1 DOCUMENTATION RE SERVICE OF APPLICATION
EXHIBIT #VACC2 DOCUMENTATION RE SERVICE ON AUSTRALIAN RETAILERS ASSOCIATION
EXHIBIT #VACC3 DOCUMENT CONCERNING SERVICE ON VECCI
EXHIBIT #VACC4 DOCUMENT CONCERNING SERVICE ON AUSTRALIAN INDUSTRY GROUP

PN4

MS RALPH: Commissioner, the VACC is a federally registered organisation. Members of the VACC by virtue of membership are covered by the Federal Industry Repair Services and Retail Award of which the VACC is a respondent. VACC has lodged this application to seek the removal of Advance Petroleum and Chisholm Petroleum from the Shop Distributive and Allied Employees Association, Victorian Shops Interim Award 2000 because both businesses are members of the VACC and also have multiple sites.

PN5

In correspondence to the SDA dated 2 August 2005 we sought the removal of the following two sites, which are cited in schedule A of the Victorian Shops Award. BP Portland One Stop, 145 Percy Street, Portland, at page 218 is now trading as Advance Petroleum BP Percy Street, Portland, and I would like to tender this as an exhibit.

PN6

THE COMMISSIONER: They were made subject to a roping-in award in 2003. Is that correct?

PN7

MS RALPH: That's correct, Commissioner.

PN8

THE COMMISSIONER: They were, by virtue of that, made parties to the Victorian Interim Shops Award?

PN9

MS RALPH: That's correct. Did you want to mark that as an exhibit?

EXHIBIT #VACC5 DOCUMENTATION IN RELATION TO RESPONDENCY OF BP PORTLAND ONE STOP TO VICTORIAN SHOPS INTERIM AWARD

PN10

MS RALPH: Just in regard to the site, it's Caltex Q7 Convenience Store, 818 Bellarine Highway, Leopold. It was marked at page 226 in schedule A. This site is now trading as Chisholm Petroleum Caltex Q7 Convenience Store and I would like to tender this as an exhibit, thank you.

PN11

THE COMMISSIONER: The Caltex Q7 Convenience Store was also made a respondent by virtue of the same roping-in award, was it?

PN12

MS RALPH: That's correct, Commissioner.

EXHIBIT #VACC6 MATERIAL IN RELATION TO RESPONDENCY OF CALTEX Q7 CONVENIENCE STORE TO VICTORIAN SHOPS INTERIM AWARD

PN13

MS RALPH: The VACC's application is consistent with prior agreement with the SDA in the practice of removing VACC members and for the record I would like to just tender an extract of a transcript that was made in regard to this case. I would just like to draw your attention to the part in regard to - - -

PN14

THE COMMISSIONER: This is the famous $2 and under. Right. Yes. This is a reference to the submission that was made in that matter on behalf of the VACC. Is that right?

PN15

MS RALPH: That's correct.

EXHIBIT #VACC7 - TRANSCRIPT FROM 26/06/2000 AT PAGE 215 IN C75644 OF 1998

PN16

MS RALPH: I would like to just draw your attention to paragraph 25 of page 215 where there was a number of correspondence sent to the union dated 1 February 99 and further on June 99. There was a list of members that was indicated on that correspondence to the union that was subject to an agreement made with Mr John Ryan of the union to remove the members from the log of claims. It further goes on and says there was a further 10 members that came to our attention and they were amenable to removal.

PN17

THE COMMISSIONER: This is because they were applying the Repair Services and Retail Award?

PN18

MS RALPH: That's correct. It's on the basis of the coverage of the retail services.

PN19

Your Honour, I would also like to tender another exhibit with additional information in regard to such agreement with the union of our members that have been caught up. This is a transcript from Senior Deputy President Watson. I'll just hand you that, thank you. If I can just draw your attention to paragraph 110 where Ms Yilmaz has highlighted there was another group of our members that have been caught up as respondents.

PN20

THE COMMISSIONER: These were proceedings before Senior Deputy President Watson in relation to a number of applications, by the look of it, to vary both the Vehicle Industry Repair Services and Retail Award and the Shop Distributive and Allied Employees Association Victorian Shops Interim
Roping-in Number 1 Award. Is that right?

PN21

MS RALPH: That is correct, Commissioner.

PN22

THE COMMISSIONER: These were proceedings on 10 June 2003 with Senior Deputy President Watson presiding.

EXHIBIT #VACC8 TRANSCRIPT FROM SENIOR DEPUTY PRESIDENT WATSON DATED 10/06/2003

PN23

MS RALPH: As previously advised, the application to the Commission is made under section 113, the Commission may set aside an award or any of the terms of an award. By virtue of the membership with the VACC these sites are covered by the Repair Services and Retail Award. 145 Percy Street, Portland joined membership with the VACC on 12 December 2003 and still holds current membership. The site 808 Bellarine Highway, Leopold joined members of the VACC on 1 November 2004 and still holds current membership.

PN24

Although it's conceded that membership to the VACC did not occur until after the roping-in, it must be noted that both of these sites were either owned or operated by different entities at the time that the roping-in occurred and hence we're not aware of their circumstances. BP Portland One Stop was purchased by Advance Petroleum in July 2001 and has operated as BP Percy Street a short time afterwards.

PN25

Caltex Q7 Convenience Store at 808 Bellarine Highway, Leopold, was sublet to a number of people during the period of 1994 to 1999. The current owner has no knowledge of ever receiving a log.

PN26

It is viewed by the VACC and consistent with the historical basis and practices of the Federal Vehicle Industry Repair Services and Retail Award that due to the nature of the industry businesses that are carried out by these respondents, the selling of petrol, motor requisites, take-away food etcetera, the Federal Vehicle Industry Repair Services and Retail Award is the most appropriate one.

PN27

This historical basis of the Repair Services and Retail Award has for many years covered service stations. Both of these sites are primarily engaged in the selling of petrol and/or the major purpose of these sites is principally concerned with the selling of petrol. These sites derive a big percentage of their business from motorists and such passing trade.

PN28

The Repair Services and Retail Award contains a classification structure and rates of pay specifically for persons employed within the industry, that is, a console operator, driveway attendant, roadhouse attendants. These structures specifically cater for persons employed within petrol retailing and I would like to just hand up an extract of a decision of Commissioner Foggo to highlight the insertion of the console operator classification and the rates to be paid to casual console operators.

EXHIBIT #VACC9 DECISION OF COMMISSIONER FOGGO IN PRINT P4839 OF SEPTEMBER 1999

PN29

MS RALPH: It must be noted that both of these service stations in their current form are more suited to coverage of the RS and R Award as they predominantly deal with the retailing of petrol. The VACC has declared the RS and R as a common rule that is an added safety net, hence, if by occurrence that either of these two VACC members ceases to become members of the VACC, then by common rule, they automatically fall within the scope of the RS and R Award.

PN30

I will bring your attention to a print of Senior Deputy President Watson PR960972 at paragraph 12 on page 4, if I can.

PN31

THE COMMISSIONER: This is a decision of Senior Deputy President Watson in PR960972 of August 2005 in relation to - I presume it's in relation to the common rule application concerning Victorian Shops Interim Award 2005. In paragraph 12 it deals with an exemption from that common rule in relation to the Vehicle Industry Repair Services and Retail Award and the fact that that award has been declared as common rule.

PN32

MS RALPH: Yes, correct. There's just one part which says:

PN33

As I understand the historical position -

PN34

as Senior Deputy President Watson says:

PN35

which is intended to continue, establishments principally concerned with the selling of petroleum fall within the scope of the Vehicle Industry RS and R award and would fall within the scope of the associated common rule declaration.

PN36

Further to that, if I can just tender as an exhibit the actual declaration that was made to seek that exemption.

PN37

THE COMMISSIONER: This is the declaration made by Senior Deputy President Watson on 3 August 2005 at PR960974, in particular clause 4 of that declaration deals with exemptions from the common rule declaration and in particular clause 4.7 refers to persons employed by establishments principally concerned with the selling of petroleum.

PN38

MS RALPH: In regard to 145 Percy Street Portland, this site is part of a large petrol retailing organisation that runs and operates over 62 locations with a large majority of outlets located in Victoria but they do have a few outlets as well in Tasmania and New South Wales.

PN39

In regard to 808 Bellarine Highway at Leopold, this site is one of another 10 sites which operate in Victoria and is also subject to the RS and R Award. In this particular instance of the Bellarine Highway Leopold store, they do have two service bays which are currently leased and are used to conduct the servicing of motor vehicles also.

PN40

Section 113(2) of the Workplace Relations Act:

PN41

The Commission may and shall, if it considers it desirable for the purpose of removing ambiguity and uncertainty, vary an award.

PN42

The existing situation at the abovementioned sites operated by Chisholm Petroleum and Advance Petroleum involves ambiguity or uncertainty because of the conflicting requirements under the two awards which apply in relation to these company sites in comparison to the other sites that they own and operate. The public interest is not served by the company having to cope with the uncertainty generated by existing situations where two awards cover the same work undertaken by the service stations operated by J. Chisholm and Advance Petroleum.

PN43

This situation does not reflect the spirit of the statement of principles as contained in the safety net review, that is to facilitate either company's process of fostering uniformity or conditions within a single industry, nor does this situation provide a framework for these employers to facilitate cooperative workplace relations as per section 88A(c) of the Workplace Relations Act, the award simplification process:

PN44

Are simplified and suited to the efficient performance of work according to the needs of particular workplaces or enterprises.

PN45

In light of this submission we are seeking that the above two members are removed or deleted from schedule A of the Shop Distributive and Allied Employees Associations Victorian Shops Interim Award 2000 to the respective dates of membership to the VACC. 145 Percy Street, Portland joined VACC on 12 December 2003 and still holds current membership, while 808 Bellarine Highway, Leopold joined VACC on 1 November 2004 and still holds current membership.

PN46

For the reasons put to the Commission in the above submission, the removal of the two sites from the Shops Award is the most logical step for the Commission to make in order for it to reflect the spirit of the statement of principles as contained in the safety net review and the principal objects of the Workplace Relations Act 1996. That's ..... Commissioner.

PN47

THE COMMISSIONER: Thanks, Ms Ralph. I think that in relation to these applications, the principle is fairly clear and that is that an employer shouldn't have the problem of determining how to apply or whether to apply more than one award to the same group of employees. It also seems to me consistent that where an organisation operates a number of sites where the same type of work is being performed, that it's logical that all of those sites are covered by the same industrial instrument and not that some are individually excluded.

PN48

It appears from the history both of this award and of its relationship with the Victorian Shops Award that there has been a clear delineation between businesses which are principally concerned with the selling of petroleum and which award applies on those sites, and businesses which might be engaged in the provision of other retail services.

PN49

I have no difficulty with the application insofar as it seeks to remove those particular respondents from respondency to the award. I do have a difficulty with the application insofar as it seeks to have such an order made retrospective. Under normal circumstances there has be special circumstances for a variation to an order to be retrospective and I don't think that you have addressed me in relation to that.

PN50

MS RALPH: Commissioner, just in the matter with Senior Deputy President Watson, the decision actually was made retrospective to have them withdrawn at the date of membership.

PN51

THE COMMISSIONER: Where are you referring to there? I don't have a decision here in relation to an order being made. I have material in relation to an exclusion from common rule and I also have material in relation to an exclusion from a log of claims but that's different. We're talking here about a variation to an award.

PN52

MS RALPH: I'm sorry, Commissioner.

PN53

MS YILMAZ: Commissioner, if I could assist.

PN54

THE COMMISSIONER: Yes, Ms Yilmaz.

PN55

MS YILMAZ: Some time ago, again before Senior Deputy President Watson, the VACC made application to remove three other sites from the Shops Interim Award which came to our attention that our members became - - -

PN56

THE COMMISSIONER: Respondent to it.

PN57

MS YILMAZ: - - - roped in to it, yes. During those proceedings we requested that those members be removed from the respondency list. Senior Deputy President Watson did in fact agree to the removal of those entities from the date of membership. Unfortunately, we didn't bring along that particular decision. I'm trying to recall the date. It would have been close to two years ago now that that application was made.

PN58

THE COMMISSIONER: Perhaps what I will do is this, I will indicate to you that I am prepared to grant the application insofar as it is to remove them from respondency to the relevant award. I will give you some further time to provide me with the precedent from Senior Deputy President Watson in relation to removing them from respondency from the date of their membership of the VACC.

PN59

It may have been, and I don't know, but if the roping-in award was made in 2003, it may have been only shortly thereafter that you sought to have them excluded and therefore the time may have been insignificant. We're talking here about
two years, which is not an insignificant period of time. I would like to have a clearer understanding of the basis upon which that was granted. If it was simply granted on the basis that they'd only recently been roped in, then that would be different to a situation where the roping-in occurred some two years ago.

PN60

MS YILMAZ: Commissioner, is I could also clarify that, as Ms Ralph has indicated, the two sites concerned were obviously roped in back in 2003.

PN61

THE COMMISSIONER: Prior to them being acquired by the current owners, in fact.

PN62

MS YILMAZ: That's correct, Commissioner, and the date of membership was after the date of being roped into the Shops Interim Award as well. At that particular time, unbeknownst to those members of ours, they still had a number of other sites that were already covered by the Repair Services and Retail Award, but in respect of those two sites, they had applied the Repair Services and Retail Award.

PN63

THE COMMISSIONER: They had been applying that all along.

PN64

MS YILMAZ: All along, not realising that prior to their purchasing the business that that particular site was in fact roped into the Shops Interim Award and that has created some complexity to the matter and the concern is that retrospectively, whilst there haven't been any issues raised in relation to award conditions, et cetera, there is a concern.

PN65

THE COMMISSIONER: There's potential that that could happen.

PN66

MS YILMAZ: There is a potential for claims. That is one of the issues, and given that those particular sites did their best to ensure compliance with what they understood to be the relevant award, unfortunately, they were not aware that they were also roped in simply by virtue of purchasing that particular site, even though the trading entity was different.

PN67

THE COMMISSIONER: Perhaps if you provide me with Senior Deputy President Watson's decision in relation to that, and I will take into account the facts that the current owners of these businesses were unaware that there had actually ever been a roping in and were in fact applying another federal award consistent with the award they were applying in other sites, I think that that is an argument in favour of the retrospective date. But I would like to see Senior Deputy President Watson's decision and then I'll issue an order after that.

<ADJOURNED INDEFINITELY [10.30AM]

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #VACC1 DOCUMENTATION RE SERVICE OF APPLICATION PN3
EXHIBIT #VACC2 DOCUMENTATION RE SERVICE ON AUSTRALIAN RETAILERS ASSOCIATION PN3
EXHIBIT #VACC3 DOCUMENT CONCERNING SERVICE ON VECCI PN3
EXHIBIT #VACC4 DOCUMENT CONCERNING SERVICE ON AUSTRALIAN INDUSTRY GROUP PN3
EXHIBIT #VACC5 DOCUMENTATION IN RELATION TO RESPONDENCY OF BP PORTLAND ONE STOP TO VICTORIAN SHOPS INTERIM AWARD PN9
EXHIBIT #VACC6 MATERIAL IN RELATION TO RESPONDENCY OF CALTEX Q7 CONVENIENCE STORE TO VICTORIAN SHOPS INTERIM AWARD PN12
EXHIBIT #VACC7 - TRANSCRIPT FROM 26/06/2000 AT PAGE 215 IN C75644 OF 1998 PN15
EXHIBIT #VACC8 TRANSCRIPT FROM SENIOR DEPUTY PRESIDENT WATSON DATED 10/06/2003 PN22
EXHIBIT #VACC9 DECISION OF COMMISSIONER FOGGO IN PRINT P4839 OF SEPTEMBER 1999 PN28