AG2004/8271, Transcript of Proceedings [2005] AIRCTrans 256 (4 February 2005)

1800 534 258

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 10224

DEPUTY PRESIDENT HAMPTON*

AG2004/8271

s.170LJ - agreement with organisations of employees (division 2)

APPLICATION BY HARRIS SCARFE AUSTRALIA PTY LTD AND ANOTHER
(AG2004/8271)

ADELAIDE

2.07PM, MONDAY, 24 JANUARY 2005

PN1
PN2

MR P MALINAUSKAS: I appear for the Shop, Distributive and Allied Employees Association, with me this afternoon is MR D BLAIRS.

PN3

MS E McCARTHY: I seek leave to appear for Harris Scarfe. With me is Ms C SCOLERI from Harris Scarfe.

PN4

THE DEPUTY PRESIDENT: Thank you. I take it leave is not opposed?

PN5

MR MALINAUSKAS: No.

PN6

THE DEPUTY PRESIDENT: Then, yes, then leave is granted. Yes, who is going to lead off? Very well.

PN7

MS McCARTHY: Good afternoon. We rely on the information contained in the statutory declaration of Ms Scoleri and we support the statutory declaration of Mr Don Farrell, which has also been filed in this matter. Your, Honour, this is an application under section 170LJ for certification of an agreement between Harris Scarfe Australia Ltd which is a constitutional corporation and the Shop, Distributive and Allied Employees Association which is the relevant union and we submit are entitled to represent the interests of the employees concerned. Your, Honour, this agreement applies to a distinct operational or organisational unit within Harris Scarfe, namely retail stores.

PN8

We note that there is a separate agreement which applies to the Warehousing and Distribution parts of the business. Your, Honour, the agreement was genuinely approved by a valid majority on 20 December 2004 and the present application was filed on 23 December 2004. Your, Honour, the steps taken by the company to explain the agreement are set out in paragraphs 6.4 through to 6.7 of
Ms Scoleri's statutory declaration. It is our submission that this agreement passes the no disadvantage test. The dispute procedure as is required by section 170LT is contained in clause 21 of the agreement, and the agreement contains a nominal expiry date of 31 March 2007. Your, Honour, it is our submission that there are no matters in the agreement that would offend the decision in Electrolux and therefore it is our submission that section 170LI is no barrier to the certification of this agreement.

PN9

THE DEPUTY PRESIDENT: Ms McCarthy. One of the issues I would like to hear from the parties from is about - I am sorry, is the general relationship between the package of wages and conditions of employment in the context of the safety net award. Now, I suspect that the agreement was negotiated in the context, at least, principally of the existing certified agreement which I am sure the parties will recall was certified, I think, by SDP O'Callaghan, I could be wrong about that, but certainly certified by a member of the Commission prior to the making of the 2003 award. Now in that context I do note the wages in the 2003 award are significantly, or they are certainly higher than the previous award.

PN10

That is a much higher than the safety net against which the previous agreement was certified and in that context I note that whilst many of the conditions in the agreement would line up in general terms with the award, in fact I do note there are certainly other benefits from the agreement that aren't in the award, but in terms of wage rates, I do note that the certified agreement contains the introductory rate, which isn't reflected in the award, to the best of my understanding. I can be corrected on that.

PN11

Secondly, because of the present rate in the safety net award for adult employees, I think, is the weekly rate is $548.50 that is actually more than - certainly more than the introductory rate but it is more than the 1 November 2004 rate for full time/part time employees and only marginally less than the 1 June 2005 rate. So, look in that context, whilst I appreciate that of course it is the package the Commission has to consider, I would invite submissions from both parties in fact, about the balance of the package in the context of the no disadvantage test.

PN12

MS McCARTHY: Thank you, your, Honour. You will note that the most recent safety net increase to the Harris Scarfe award doesn't come into effect until 1 May 2005? So it is our submission that if there is a disadvantage in terms of wages, then that disadvantage is minimal given that the increased base rate of $555.00 per week comes into effect on 1 June 2005. So if there is any disadvantage in terms of base wage, that disadvantage is only $3.50 per week and only exists for one month and once the 1 June 2005 has come around, then the rate is significantly higher than, what will be the current award rate at that time.

PN13

THE DEPUTY PRESIDENT: I take it there was a deliberate decision taken for whatever reason, to delay the implementation of the safety net adjustments through the award?

PN14

MS McCARTHY: That is correct and it actually relates back to, not the 2004 safety net increase, but actually the 2003 safety net increase and for the last couple of years, the Harris Scarfe date has been out of kilter with the general - - -

PN15

THE DEPUTY PRESIDENT: Yes, and I should say, both parties agreed, that I was actually involved with proceedings that may well have something to do with that delay. What, I wasn't familiar with of cause is - because I didn't deal with the 2003 version of the award but that is not reflected through into the current rates. All right. Okay. Thank you. Yes and the union's position?

PN16

MR MALINAUSKAS: Thanks, your, Honour. The SDA would certainly concur with the outline of events that my learned friend has provided, but just worthwhile reiterating is the fact that in December of last year the SDA did have various communications with its members in regard to the EBA and then a fortnight later conducted a vote in which the valid majority did support the enterprise bargaining agreement, going through.

PN17

THE DEPUTY PRESIDENT: I believe that Mr Farrell's statutory declaration at least refers to the fact that the union produced a written explanation of the comparison between the current agreement and the award?

PN18

MR MALINAUSKAS: That is correct, yes.

PN19

THE DEPUTY PRESIDENT: Do you have a copy of that?

PN20

MR MALINAUSKAS: We have a copy of - not of the comparison agreement on us, no.

PN21

THE DEPUTY PRESIDENT: I take it however, that that was in the form that I have seen from the SDA in other certified agreement applications?

PN22

MR MALINAUSKAS: That would be the case, yes.

PN23

THE DEPUTY PRESIDENT: Very well. Anything further?

PN24

MR MALINAUSKAS: No, nothing further, your, Honour.

PN25

THE DEPUTY PRESIDENT: Anything further?

PN26

MS McCARTHY: No thanks, your, Honour.

PN27

THE DEPUTY PRESIDENT: Look, I will deal with the application now. Firstly, I accept that the agreement is a relevant agreement for the purpose of this Act and that no issues arise from what is generally referred to as the Electrolux decision. The parties will be very happy to hear that, as indeed is the Commission. Secondly, I accept that the requisite processes have been followed to lead to the endorsement of the agreement by a valid majority of the employees within the meaning of the Act. As to the agreement itself, for reasons which will be clear to the parties, I have carefully considered the balance of the conditions in the agreement as against the safety net award.

PN28

Given the timing of the implementation of the most recent rates that appear in the award, I accept that the agreement meets the no disadvantage requirements of the Act and in that context I do note, that there is the introduction, of the introductory rate and whilst that was in the previous certified agreement, the parties would also appreciate that I am required to assess it against the safety net award as it stands at the time of dealing with the matter. And I also note that the rate of pay for full time and part time employees will, in certain circumstances, be marginally less than the award for a small amount of time. However, the Act requires me to consider the package of conditions and in that context I do note that there are certain other benefits which are contained in the certified agreement that are not in the award, and I am satisfied as a package, that it is not inferior and that it, more importantly, meets the no disadvantage requirements of the Act.

PN29

Having been satisfied of those matters and all other conditions, I indicate that I will in due course, issue an order certifying the agreement pursuant to the Workplace Relations Act 1996. The order will come into force on and from today's date and noting the nominal expiry date of 31 March 2007. In that context, I do note that the parties have made a commitment to each other with a retrospective date of operation and of course that can now be applied by administrative action consequent upon the Commission's certification. A copy of the order and the agreement that I have just certified, will be supplied to both parties. Lastly I would wish the parties well in the administration of this agreement as with its predecessors, I suspect with slightly more confidence, I would anticipate that there are certain provisions in this agreement that won't require practical application, those being the redundancy provisions.

PN30

I know that has not always been the case and I am thereby referring to some of the earlier proceedings that I was involved with. But in that context, I have every confidence that the agreement will stand with both Harris Scarfe's and the union that has held us in good stead, and I wish you all the best in that respect. The Commission will be adjourned.

<ADJOURNED INDEFINITELY [2.18 PM]