AG2005/7920, Transcript of Proceedings [2005] AIRCTrans 2569 (30 December 2005)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 13719-1

COMMISSIONER GAY

AG2005/7920

APPLICATION BY EUREKA OPERATIONS PTY LTD T/AS COLES EXPRESS & SHOP, DISTRIBUTIVE AND ALLIED EMPLOYEES ASSOCIATION
s.170LJ - Agreement with organisations of employees (Division 2)
(AG2005/7920)

MELBOURNE

10.11AM, TUESDAY, 13 DECEMBER 2005

PN1

MS S BURNLEY: I appear on behalf of the Shop Distributive and Allied Employees Association.

PN2

MS F WALLISS: I appear on behalf of Eureka Operations Pty Ltd, trading as Coles Express.

PN3

THE COMMISSIONER: Who's going to lead, Ms Burnley, Ms Walliss?
Ms Walliss is ready to fire up.

PN4

MS WALLISS: It's me.

PN5

THE COMMISSIONER: All right.

PN6

MS WALLISS: Thank you Commissioner. This is an application pursuant to section 170LJ to certify the Eureka Operations Pty Ltd Fuel and Convenience Team Member Agreement, which has been made with the SDA. It covers retail and convenience operations of Eureka Operations on a national basis and covers approximately 5000 team members.

PN7

The agreement is the first certified agreement for this business and as advised to you yesterday, we have located an error in the drafting of the agreement which
Ms Burnley spoke to you about. The error's in regards to clause 24, public holidays, and in particular, clause 24.1.1.

PN8

THE COMMISSIONER: Yes.

PN9

MS WALLISS: The issue at hand is in relation to the version submitted actually refers to Easter Monday and has - that list as a public holiday which applies to permanent team members, except for those in Tasmania. The intent of the parties was actually that the exception would apply to those two members of Tasmania on Easter Saturday and not Easter Monday.

PN10

This is consistent with the clause 24.1.2(d) of the agreement which shows that in Tasmania they observe show day in lieu of Easter Saturday not Easter Monday. It's also consistent with clause 26, the public holidays clause under the Vehicle Industry Repair Services and Retail Award.

PN11

Further, to support the parties' intent, the SDA communication that was sent to employees as part of the rolling out of the agreement for voting also indicates the intent is that it should be Easter Saturday and not Easter Monday that is replaced. I've got an amended version of the clause which contains the correct intent.

PN12

THE COMMISSIONER: It was voted on Ms Walliss?

PN13

MS WALLISS: What was being submitted to you - - -

PN14

THE COMMISSIONER: Yes, ….., and that's the difficulty in - - -

PN15

MS WALLISS: I understand that.

PN16

THE COMMISSIONER: - - - there is I think it's thought a slip rule which applies in the event of a genuine - if the Commission believes there is a typographical error which otherwise could cause some problem, some common sense intrudes. But this is really of a different sort and I understand what you're putting and I think what I'll do is take what it is that you'd like me to take and I'll mark it as an exhibit and place it on the file, subject to what Ms Burnley has to say and you and Ms Burnley can indicate, and I assume Ms Burnley is in hearty agreement with you about these things.

PN17

MS WALLISS: She certainly is, Commissioner.

PN18

THE COMMISSIONER: These poor Tasmanian cousins of ours and in the event that you're prosecuted you'll - by one of these litigious people down there, you'll no doubt rely on this exhibit which I'll mark in just a moment and this transcript which the parties would do well to order. Because I do believe that the transcript has a shelf life these days and unless it's ordered it can't be though oh well we'll go back 2 years later and order that transcript because it may not be there.

PN19

MS WALLISS: We'll do that Commissioner.

PN20

THE COMMISSIONER: So there's a whole litany of helpful things hopefully coming out. Now let's mark this Coles Express 1. Never had a joint exhibit.
Ms Burnley did you identify with this exhibit?

PN21

MS BURNLEY: Yes.

EXHIBIT # COLES EXPRESS/SDA 1 - AMENDED VERSION OF CLAUSE 26

PN22

THE COMMISSIONER: So there's some mutuality, that's meant to help you in the event that you're being ravaged by some person down south. All right, so there we are, pop that on the file thank you.

PN23

MS WALLISS: Thank you Commissioner. In respect to all other aspects of the agreement we believe that the agreement meets the requirements of section 170LT and that all aspects have been satisfied in that the agreement passes the no disadvantage test, a valid majority of employees have approved and genuinely approved the agreement. That there was explanation of the agreement was appropriate to the employees having regards to their particular circumstances. The agreement does contain a grievance or procedure for preventing and settling disputes at clause 28 and the agreement contains a nominal expiry date of three years from the date of certification.

PN24

THE COMMISSIONER: Yes. Ms Walliss, I wanted to ask you about the trade union training leave provision.

PN25

MS WALLISS: Yes, Commissioner.

PN26

THE COMMISSIONER: Well I see that it said that they're designed to promote - the courses are approved, the courses which are designed to promote good industrial relations and industrial efficiency. Do I take it that the way you intend that course to operate and the way in which the leave will be approved with the union is in relation to training which affects and is designed to improve the operation of the agreement and the dispute settling procedure within the agreement and its explanation?

PN27

MS WALLISS: It's usually related to - yes, application of the agreement, it might be various aspects of it or perhaps the safety component as well of that which also falls under the agreement.

PN28

THE COMMISSIONER: Yes. A safety component.

PN29

MS WALLISS: Yes.

PN30

THE COMMISSIONER: Is that what you said?

PN31

MS WALLISS: On occasions yes.

PN32

THE COMMISSIONER: Yes, good, thank you, thank you. Thanks Ms Walliss for that. Yes Ms Burnley.

PN33

MS BURNLEY: Yes Commissioner. Just in support of the submissions that
Ms Walliss has made regarding the error which occurred in the drafting of the agreement, I do have to tender to the Commission a summary document which the Tasmanian branch relied upon in rolling out the agreement, which I will tender to the Commission. It does have some little drafting marks on that one because unfortunately the organiser isn't - had to pull it off the computer this morning and isn't quite computer literate as to how to get rid of the drafting. It does have some formatting changes on the side which didn't go out when it was produced in the stores.

PN34

What the document is, is actually the document that I drafted on behalf of all the branches and the company also agreed with my interpretation of the agreement so there was agreement as to the content of this document and I take the Commission to page 6, number12, which is public holidays. In which we describe how the public holidays clause would work and we detail there in the first half of that clause which are the public holidays which would be observed and it's clearly noted there that Easter Saturday and Easter Monday are holidays and Easter Saturday doesn't apply in Tasmania.

PN35

So that is what was approved by the company prior to the roll out of the agreement.

PN36

THE COMMISSIONER: Yes.

PN37

MS BURNLEY: That was given to - or made available to employees throughout the country but also in Tasmania especially.

EXHIBIT #BURNLEY1 - SUMMARY DOCUMENT RELIED UPON TO ROLL OUT AGREEMENT

PN38

MS BURNLEY: The second point I would make in regard to this error is that the parties didn't in their statutory declarations indicate that the removal of Easter Saturday or Easter Monday from Tasmania would actually be a reduction in conditions as applies currently under the Vehicle Industry Repair Services and Retail Award.

PN39

So at ….. annexure A of both stat decs there is no reference there that Easter Monday has been removed as a deliberate reduction in terms and conditions which clearly it would be if that was the intent of the parties and we would have had to notify that to the Commission in seeking to certify this agreement. So it was clearly the intent of the parties to have Easter Monday as a public holiday in Tasmania.

PN40

THE COMMISSIONER: Yes. Well you say that the joint exhibit really sets out the intention.

PN41

MS BURNLEY: Yes.

PN42

THE COMMISSIONER: And indeed the agreement, what was agreed and what went to vote was a document that contained an error.

PN43

MS BURNLEY: Yes. Yes Commissioner.

PN44

THE COMMISSIONER: Yes, I follow that.

PN45

MS BURNLEY: I also support the further submissions that Ms Walliss made in seeking to have the agreement certified as from today's date, if it pleases the Commission.

PN46

THE COMMISSIONER: Yes. Thanks Ms Burnley. This application made under section 170LJ to seek certification of the agreement reached between the SDA have used it's shortened name and Eureka Operations Proprietary Limited and entitled, Eureka Operations Fuel and Convenience Team Member Agreement 2005.

PN47

The agreement has in my view features which mean it can be certified. It has as its period of operation a term extending from today's date and remaining in operation for three years. It contains a dispute procedure which is in my view a satisfactory one, by which I mean it satisfies the obligation under the Act. It confers benefits. It's obvious from the transcript that that disagreement contains an error and it is important to understand the operation in relation to public holidays in Tasmania by reference to Coles Express/SDA1, a joint exhibit. If it were of a larger scale - I withdraw that.

PN48

It would be a travesty to the agreement of the parties if that difficulty or infelicity in the rendering of the parties' agreement went out to vote meant that it couldn't be certified or will be certified in properly applying the agreement, there can be no doubt that the instrument should be seen in the context of what the parties have said today.

PN49

The agreement will be certified by the Commission with an instrument that I'll sign when it's prepared and I'll place a copy on the file and send a copy to the parties. It will reflect the certification from today's date having regard to the terms of the agreement which I've referred. Thank you, good bye.

<ADJOURNED INDEFINITELY [10.23AM]

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT # COLES EXPRESS/SDA 1 - AMENDED VERSION OF CLAUSE 26 PN21
EXHIBIT #BURNLEY1 - SUMMARY DOCUMENT RELIED UPON TO ROLL OUT AGREEMENT PN37