AG2005/7858, Transcript of Proceedings [2005] AIRCTrans 2571 (30 December 2005)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 13720-1

COMMISSIONER GAY

AG2005/7858

APPLICATION BY ILKLEY PTY LTD T/AS AUTOSPA CARWASH CAFE
s.170LK - Agreement with employees (Division 2)
(AG2005/7858)

MELBOURNE

11.20AM, TUESDAY, 13 DECEMBER 2005

PN1

THE COMMISSIONER: Mr Maher, you seek leave to appear and leave is granted.

PN2

MR A MAHER: Thank you Commissioner. This is an application under 170LK for the certification of the Autospa Carwash Cafe certified agreement 2005 to 2008. Commissioner, the details of this agreement are set out in statutory declaration, that have been provided to the Commission. On the basis of those declarations, we'd submit that sections 170LK and 170LT of the Workplace Relations Act have been satisfied.

PN3

The employees were given the requisite amount of time and were provided with a comparison table, which looking at the material filed with the Commission. I'm not sure if that comparison table - I'm not talking about the work model comparison table but one that actually sets out the difference between this award and the relevant awards that was provided to employees. If the Commission doesn't have it on file, I have another copy.

PN4

THE COMMISSIONER: Thank you.

PN5

MR MAHER: I'll just hand this up. Commissioner, as well as meetings held with the employees on the date that was outlined in the 170LK(2)/LK(4) notice.

PN6

THE COMMISSIONER: I'll mark this Mr Maher.

EXHIBIT #MAHER1 - TABLE COMPARING AWARDS

PN7

MR MAHER: I'm instructed that this was provided individually to each of the 14 employees who - 13 employees whose employment is to be subject to the agreement should it be certified. As the Commissioner will note, it sets out in considerable detail the relevant provisions in the award.

PN8

As this - I understand from my instructor, that two of the employees under the agreement work in the café part of the carwash, where people can sit down and obviously have a coffee while their cars are being handwashed. They may well come under the Vehicle Industry Award as an incidental classification because there's roadhouse operators and there are sort of cooking classifications, but for the sake of completeness, we've also included the relevant provisions in the Liquor and Accommodation Industry Restaurants Victoria Award 1998 that applies like the Vehicle Award as a common rule in Victoria.

PN9

THE COMMISSIONER: Yes.

PN10

MR MAHER: So the employees - for those two employees they actually had access also to the relevant provisions of that Award as they apply to the agreement. Accordingly, I would submit that 170LK(7) has been satisfied. In addition to the material to the 170LK(2) notice and this table, we've also provided a set of work model comparisons which have been filed with the Commission at the same time as the agreement.

PN11

THE COMMISSIONER: Yes, yes they're there.

PN12

MR MAHER: Commissioner, these are not hypotheticals. We asked the client if they could provide us a set of sample rosters which are in place at present, not future rosters, and we've based these calculations on that actual roster's worked by actual employees. So these are not hypotheticals. We are instructed and this is, we believe, reflected in the focus in the hours work clause and equitable rostering, that in this operation employees don't work the same shifts every week and employees do all work a varying state of shifts so they do get mixes of weekends and weekdays.

PN13

THE COMMISSIONER: That's how you've constructed - that's how the agreement will continue to be applied?

PN14

MR MAHER: That's exactly right. I'm been given a firm undertaking by my client that my client's happy to have formally put to the Commission and put on transcript that this is the way the business has been running prior to the implementation of this agreement and that will be the way that the business will run during the life of the agreement.

PN15

THE COMMISSIONER: Yes all right, thanks Mr Maher.

PN16

MR MAHER: Thank you sir.

PN17

THE COMMISSIONER: What I might do Mr Maher is order the transcript in this matter and place it on the file. To see that your final undertaking as it were, is given full effect. I note that you've included material. The comparison table is there and there's also an attachment that sets out the additional undertakings.

PN18

MR MAHER: That's correct Commissioner.

PN19

THE COMMISSIONER: Yes. Now, this application is made - yes I knew there was something I was going to ask you Mr Maher, it just takes me a while to remember things these days unfortunately. It's the LK(4) point, is that the advice went out - I believe you say it did and the 2 November document sets out the detail of that advice doesn't it?

PN20

MR MAHER: That's correct Commissioner. If I could take you also to the last paragraph of that letter to employees entitled, "To all employees of Ilkley Pty Ltd, proposed certified agreement".

PN21

The letter indicates that:

PN22

if you're a member of the organisation of employees i.e. a union, that organisation is entitled to represent your industrial interests in relation to work subject to the agreement. You may request that organisation to represent you in meeting and conferring with the company about the proposed agreement.

PN23

but I understand it satisfies the requirement of 170LK(4).

PN24

THE COMMISSIONER: Yes. Yes I accept that, thank you Mr Maher. This application under section 170LK has received certification of the agreement reached between the employees of Ilkley Pty Ltd and that company whose work is conducted under the trade name of Autospa Carwash Cafe.

PN25

The agreement has an operative date of - a nominal period of operation extending from the date of certification which would be today's date until the - enduring until 12 December in 2008. Now, this agreement brings with it a range of assurances and undertakings given by Mr Maher which I have no hesitation in accepting.

PN26

I've indicated that I will order the transcript and place it on the file, but it is the case that to properly understand the operation of the agreement it is necessary to have regard to the comparative table, explanatory material, which is in relation to disadvantage. It's necessary to understand the comparative table and also the undertaking given as to rostering matters and also the undertakings that are set out in the application and that I really should mark and do so now.

EXHIBIT #MAHER2 - DOCUMENT HEADED ADDITIONAL UNDERTAKINGS

PN27

THE COMMISSIONER: Having regard for those things, the agreement I think can be considered as capable of certification. It has a disputes procedure which provides for proper resolution, certainly resolution of matters arising which meets the requirements of the Act. In other respect, it is capable of certification. I will certify it later today with effect from today's date having regard to that period of operation to which I've earlier referred. Thanks Mr Maher, we're now adjourned.

<ADJOURNED INDEFINITELY [11.28AM]

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #MAHER1 - TABLE COMPARING AWARDS PN6
EXHIBIT #MAHER2 - DOCUMENT HEADED ADDITIONAL UNDERTAKINGS PN26