C2005/5618, Transcript of Proceedings [2005] AIRCTrans 2544 (29 December 2005)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 13677-1

COMMISSIONER WHELAN

C2005/5618

KAYNE PTY LTD
AND
MS MARGARET NAYLOR MS STELLA SALVARIS MR SHAUN THOMPSON SHOP, DISTRIBUTIVE AND ALLIED EMPLOYEES ASSOCIATION
s.99 - Notification of an industrial dispute
(C2005/5618)

MELBOURNE

11.41AM, MONDAY, 05 DECEMBER 2005

PN1

MR L BLIGNAUT: I am from the Master Grocers Association of whom the applicant company is a member since Master Grocers Association is a Association is an association registered under the Act we are entitled to represent them in this matter.

PN2

MR A BURKE: I appear on behalf of the Shop Distributors and Allied Employees Association.

PN3

MS M NAYLOR: I am Margaret Naylor.

PN4

MR S THOMSON: I am Shaun Thomson.

PN5

MS S SALVARIS: I am Stella Salvaris.

PN6

THE COMMISSIONER: Thank you. Right, Mr Blignaut this is your application?

PN7

MR BLIGNAUT: Yes your Honour. Commissioner if I may start what happened in this case is that Clinton and Elizabeth Sceney through Kayne Pty Limited, obtained a shop and IGA store supermarket in Whitehorse Road, Morwell. They were sub-lessee in that particular shop and the head lessor was Metcash who provided them which groceries and so forth. Through some oversight or mistake Metcash failed to renew the head lease and as a result of that the lease went back to the owner who doubled the rental that the sub-lessee had to pay. Given these circumstances, Kayne Pty Limited decided to close their shop because if they continued trading they would have become bankrupt.

PN8

They advised all their employees, they arranged for an auction to sell all the equipment in the shop off, they had to sell their house to pay for outstanding loans in respect of the business. They still owe $100,000 or so to Metcash as I understand, but this is in limbo because since then with the assistance of Metcash they have taken a loan of $1.5 million to buy a store in Phillip Island and to remain in business to provide a living for themselves. The house they sold was situated in Camberwell and they owned the house for 13 years. All in all they’ve lost some $750,000 through loss of the business, loss of stock and loss of equipment. In respect of their employees, employees were paid all entitlements including long service leave, annual leave, the loading on annual leave.

PN9

All the requirements in respect of the agreement were met. They went out of their way to obtain acceptable alternative employment for their employees. Casuals for example went to Safeway which was a little bit down the road, all full-time employees were offered alternative employment. The respondents in this matter which are the individual respondents, the applicant took the necessary trouble to arrange interviews for Ms Naylor and Ms Salvaris, they arranged interviews at Boccaccio’s IGA, it doesn’t trade too far away from where they were. Boccaccio’s IGA is on the corner of Burke and Whitehorse if I – if memory serves me correct, which is about a block away, two blocks away from where Kayne Pty Limited traded.

PN10

Ms Naylor decided to go into retirement rather than attend the interview.
Ms Salvaris attended the interview and is still working at Boccaccio’s. In respect of Mr Thompson, interviews were arranged with him at Heathmont and Ringwood, his address is in Donvale and those stores are closer to his house I understand, or his place of residence than the store in Balwyn North. If one looks at the authority of the Industrial Relations Commission, acceptable alternative employment does not mean employment which is acceptable to the employees but it’s an objective test involving the nature of the work, the nature of the duties and so forth.

PN11

In this respect I would like to refer to what I call the Delroy Nominees Pty Limited case, it’s a 1988 decision but is has been followed recently in various decisions like Westpac Banking Corporation v Finance Sector of Australia in what constitutes acceptable employment and what constitutes obtains. Now acceptable employment is a matter of objectivity. It’s an objective test and in all three of these cases they were offered jobs in supermarkets doing the same work that they did. In as far as obtaining is concerned, the employer doesn’t physically have to obtain an employee the job and I will read from the Delroy Nominees case:

PN12

The word obtain does not appear in its context to mean actually obtain in the fullest sense possible. It seems to us that the meaning is of assistance here. That is the employer by purpose and effort may establish an opportunity which suits the employee and which crystallises it as alternative employment of an acceptable kind.

PN13

THE COMMISSIONER: Mr Blignaut do you have copies of that decision.

PN14

MR BLIGNAUT: I can hand it up.

PN15

THE COMMISSIONER: No, I’m asking do you have copies to give to the other parties and to the Commission?

PN16

MR BLIGNAUT: I don’t.

PN17

THE COMMISSIONER: All right. When you’ve finished we’ll have a break while copies are made and other people are given a copy of the decision. Continue.

PN18

MR BLIGNAUT: Now as far as the employees are concerned they were all covered by the Kayne Pty Limited SDA agreement. The alternative positions that were arranged for them, Boccaccio’s is covered by the SDA Federal Shops agreement – I mean award for Mr Thompson by the MGAV Award. Admittedly the wages in these instruments are lower then the wages in the David’s agreement but if one looks at the tendency over the years these agreements are actually catching up and the wage rate for example under the MGAV agreement is $550 a week now where it was $551 a week at the time for - - -

PN19

THE COMMISSIONER: Sorry which agreement are you talking about I’m having a little difficulty in following you and what you’re referring to. These employees are covered by an agreement known as the SDA MGAV & Kayne Pty Limited formerly David’s Supermarket Balwyn Certified Agreement. Now you’re saying that the alternative employment was covered by two different instruments.

PN20

MR BLIGNAUT: By two different instruments.

PN21

THE COMMISSIONER: Could you give me the details of what those instruments are please.

PN22

MR BLIGNAUT: The one instrument is the SDA Federal Shops Award 2000, it the underlying award for the David’s agreement and the other instrument is the Master Grocers – is the Shop Distributors Allied Employees and Master Grocers Association Award of Victoria AG2002/4632.

PN23

THE COMMISSIONER: So it’s an award as well?

PN24

MR BLIGNAUT: No it’s an agreement sorry.

PN25

THE COMMISSIONER: It’s an agreement okay.

PN26

MR BLIGNAUT: It’s underpinned by the Master Grocers Award.

PN27

THE COMMISSIONER: Yes, but you’re talking - it’s an actual agreement, could you just give me the details of that agreement please.

PN28

MR BLIGNAUT: Shop Distributive and Allied Employees Association and Master Grocers Association of Victoria Enterprise Agreement 2002 and it’s AG2002/4632.

PN29

THE COMMISSIONER: 463?

PN30

MR BLIGNAUT: Two.

PN31

THE COMMISSIONER: Two thank you.

PN32

MR BLIGNAUT: Now the wage rates in those agreements were lower and if you can just bear with me and I’ll - the basis wage rate - and this is the basis wage rates for these employees under the Masters Grocers Agreement it was $512 a difference of $39.20 per week. Under the federal shops award the base rate was $526.40 a difference of $24.80 per week. Under the Kayne Pty Limited agreement the basic wage rate at that time per week was $551.20. In the case of Mr Thompson there were certain penalties that applied because he worked on Sundays and he worked late hours. What I would like to suggest if it is at all possible, is that if we could go into a conciliation exercise and see whether we could reach some form of agreement on what severance pay should be payable or not.

PN33

THE COMMISSIONER: Okay thank you. Can I just ask you as I understand it the termination of these employees occurred in December 2004.

PN34

MR BLIGNAUT: Yes.

PN35

THE COMMISSIONER: Can you ask me - can you tell me why it has taken 12 months for this application to be made.

PN36

MR BLIGNAUT: What happened was no employees challenged the employer. The individual respondents went to the Department of Workplace Relations Wageline and lodged a claim and that’s when the dispute arose. The applicant employer approached the employer association and we lodged the dispute.

PN37

THE COMMISSIONER: Can you tell me what’s happened with the claim? Are there proceedings for enforcement of this agreement on foot at the moment?

PN38

MR BLIGNAUT: At the moment the department is awaiting the outcome of this dispute.

PN39

THE COMMISSIONER: Right, thank you Mr Blignaut. Mr Burke.

PN40

MR BURKE: Commissioner, in relation to this matter we’ve received notification to attend and the three employees or former employees are not members of ours, however, it is our agreement so we have attended in light of the fact that we have been notified. I was made aware by Mr Blignaut a few weeks ago that he was making this application however, I checked and found that the three employees or ex-employees were not members. However, we’re happy to attend today to - as we’ve been asked to - we’ve received notification I’m not sure what more role we would have, other than happy to remain if the Commission would like us to or not.

PN41

THE COMMISSIONER: Well you’re here because you’re a party to the agreement but you don’t actually have a direct interest in the outcome.

PN42

MR BURKE: No, exactly.

PN43

THE COMMISSIONER: Yes, okay thanks Mr Burke. Now Ms Salvaris,
Mr Thompson and Ms Naylor what Mr Blignaut was suggesting is that at this point in time we go off the record and we have some discussion, to see whether it is possible to reach some agreement in relation to the claims that you have made under the terms of the agreement and to therefore reach a resolution which does not require the giving of evidence. Because clearly on what Mr Blignaut has put in order to determine this application I would need to hear evidence from each of you and I would also need to hear evidence from the parties who were and presumably still are, I don’t know, of Kayne Pty Limited in relation to what occurred at the time that they gave up this particular business and all of the employees presumably had their employment terminated.

PN44

So if you’re agreeable with that proposition it’s my intention that we will now go off the record into a private conference to hear what Mr Blignaut has to say in relation to the basis upon which he is suggesting the matter might be settled and hear what you have to say in response to that. Are you happy to proceed in that way?

PN45

MR THOMPSON: Yes we are agreeable to that.

PN46

THE COMMISSIONER: Okay then. All right, on that basis we will go into conference at this stage, thank you.

<NO FURTHER PROCEEDINGS RECORDED