AG2005/24, Transcript of Proceedings [2005] AIRCTrans 835 (4 April 2005)

1800 534 258

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 11026-1

COMMISSIONER WHELAN

AG2005/24

APPLICATION BY JIKIMA PTY LTD T/AS SUBWAY MILDURA
s.170LK - Agreement with employees (Division 2)
(AG2005/24)

MELBOURNE

11.48AM, THURSDAY, 24 MARCH 2005

PN1

MR B THOMPSON: I seek leave to appear on behalf of the employer in this matter, Commissioner. I have with me today, the employer, a MS K RIDLEY,
and an employee representative MS T SMYTHE, if it pleases the Commissioner.

PN2

THE COMMISSIONER: Thanks, Mr Thompson, I'll grant leave for your appearance in relation to you on the matters. I think, the first thing I need to do is to deal with the application for the designation of an appropriate award because this is a no-disadvantage test, is that right?

PN3

MR THOMPSON: Yes it is, Commissioner.

PN4

THE COMMISSIONER: I have that application and the application indicates that the type of work involved is the preparation of serving of food and beverages, that is Subway Sandwiches and Salads franchise and that the appropriate award you're suggesting is the National Fast Food Retail Awards. Is that right?

PN5

MR THOMPSON: Yes it is Commissioner.

PN6

THE COMMISSIONER: I don't know that I need to rely too much on that. I think I do know what happens at the Subway Sandwich and Salad franchise and I think that it does come within parameters of the National Fast Foods Retail Award and on that basis I'll designate that award.

PN7

MR THOMSON: Thank you, Commissioner.

PN8

THE COMMISSIONER: It's in part of the application then relates to the application for certification of the agreement. I have in relation to that a copy of the agreements and I've got the statutory declaration that is written, it has made in support of that application. I also received out on my quest, copies of the rosters in relation to the employment of employees at the Subway in Mildura. Well, there are two, I think, are there two locations in Mildura. Is that right?

PN9

MS RIDLEY: Yes, Commissioner.

PN10

THE COMMISSIONER: Right. Okay yes I've received those two, those documents. Okay. Mr Thompson?

PN11

MR THOMPSON: Thank you, Commissioner. We seem to have this application, that's an agreement which was made under section 170LK of the Workplace Relations Act certified pursuant to section 170LT of the Act. The agreement is known as the Jikima Pty Ltd Certified Agreement 2004. We would submit that the agreement complies with all of the requirements of the Act and that it applies in their advantage to employees covered, it is arrived that with the full understanding and agreement, by a valid majority of employees, the majority were ascertained by means of a secret ballot at the workplace.

PN12

All employees subject to the agreement, individually received a ballot notice of intent, in accordance with section 170LK(2) and( 4) of the Act. The Notice of Intent contains the exact wording as required by the Act in relation to representation. All time frames stipulated by the Act were complied with and the Act contains a dispute settlement clause so the agreement contains a dispute settlement clause. Finally, the agreement has a nominal term of 3 years from the date of certification. Commissioner, I leave myself in your hands to deal with any particular questions regarding the application.

PN13

THE COMMISSIONER: Yes, I think I have taken the opportunity to read the documentations, Mr Thompson, I think that I have to say on the issues in relation to this application I had in the beginning - application - the certification of the code the Jikima Pty Ltd Certified Agreement, It seems to me that they are saying, issues arise, in a very similar issue to rise. There are some differences in relation to this application, there are a large number of employees involved and looking at the rosters, the rosters arrangements are slightly different. However the issues that I've raised in relation to that, in particular in relation to definition of part-time employees and the implications of that definition I think are - include relevance in this matter.

PN14

Perhaps if I can ask Ms Ridley, in terms of the engagements of employees, the agreement refers to people being given, and upon the contract of employment an engagement letter, has this happened until now or is this something you're proposing will occur under the terms of the agreement - people already been given an engagement letter?

PN15

MS RIDLEY: Sorry I don't understand the question.

PN16

THE COMMISSIONER: Okay, in the agreement, it says that this agreement is read in conjunction with a letter of engagement which would be given to each of the employees. Up until now, have you been giving each individual employee a letter of engagement or have you not been doing that?

PN17

MR THOMPSON: Well, I think the answer to that question might be a little more open than that, in that all of the employees up to now have been utilising AWA's, and there have been welcome letters in relation to the AWA's.

PN18

THE COMMISSIONER: Well, does that letter simply refer the terms of the AWA's instead. I am not clear as to what you mean by that, Mr Thompson - - -?

PN19

MR THOMPSON: AWA - - -

PN20

THE COMMISSIONER: I understand that the big boys had been engaged on AWA's. Is the AWA the only document that they have been given or have they been given in addition to that, a letter of engagement?

PN21

MR THOMPSON: They've got all sorts of documents including policies, procedures, - - -

PN22

THE COMMISSIONER: Yes, I understand that. Is there a letter of engagement that refer to anything in relation to the terms and conditions of your employment, except - - -?

PN23

MR THOMPSON: Common law contract.

PN24

THE COMMISSIONER: That's what I'm - I'm asking you because the agreement itself says that:

PN25

This agreement will be read in conjunction with an employment contract in the form of an engagement letter.

PN26

MR THOMPSON: Yes.

PN27

THE COMMISSIONER: I am asking you whether there is such a document that's present or whether it is proposed that such a document will exist in the future.

PN28

MR THOMPSON: There are engagement letters, that employees have received in relation to their hourly raise, any engagement letter that will be read with this agreement will be a separate engagement letter with this agreement.

PN29

THE COMMISSIONER: So at the moment they do have a letter which was given to them?

PN30

MR THOMPSON: Every - I'd have to confirm whether it's every employee - - -

PN31

THE COMMISSIONER: That's why I'm asking, because why I'm asking
Ms Ridley is because she's the employer.

PN32

MR THOMPSON: Well, she's appointed me as her representative today to answer questions as far as I can on her behalf.

PN33

THE COMMISSIONER: There's a question of fact, but if you're unable to answer that question she may be able to answer that question. At the moment, have all the employees received a letter of engagement or not? That's a simple question.

PN34

MS RIDLEY: At the moment they've just signed on a AWA agreement, and then they will get a letter of employment - a certified agreement.

PN35

THE COMMISSIONER: Thank you, I ask the question of Mr Thompson because of a very specific issue I've raised in relation to the question of the definition of part-time employees. The definition of part-time employee in the agreement is a very broad one.

PN36

MR THOMPSON: No it's not, Commissioner, I disagree with you on that.

PN37

THE COMMISSIONER: If it's not a very broad one, then it's not one that incorporates the requirements of the definition of the part-time employment in the award.

PN38

MR THOMSON: Yes, it is, Commissioner, I disagree with you on that point. If I might take you to the award - - -

PN39

THE COMMISSIONER: All right.

PN40

MR THOMSON: If I might take you to the award, Commissioner, the definition of a part-time employee under the award, is actually far narrower than that - that you have mentioned as the definition of part-time employee. What you're referring to are conditions that part-time employees. - that would be met for
part-time employees when they are first employed under the award. Now, because of the changes to the industrial landscape in Victoria, because of the change between states set the minimums or in this case, AWA's, where employees are first engaged, then those conditions emulations of part-time employment will never be triggered in relation to these employees.

PN41

The actual definition of part-time employee, is far narrower than those conditions and those conditions as I say, may never actually be triggered and probably in this case you could say almost certainly will never be triggered, and therefore they have irrelevant consideration for the purpose of no-disadvantage test.

PN42

THE COMMISSIONER: Mr Thompson, you are going to have to put those matters in writing because I don't accept this submission that you put to me and the terms that you put it to me. I am not going to proceed with this application for certification in relation to those matters unless these matters are appropriately dealt with.

PN43

MR THOMPSON: These matters have not been raised as - - -

PN44

THE COMMISSIONER: I think you were on notice of this Mr Thompson.

PN45

MR THOMPSON: Commissioner, my concern is that the Commission has a function under this part of the Act to facilitate the certification of agreements. There are over a hundred other application similar to this that have been certified within days of being lodged. This application is one of eight applications with you at this point in time that have been outstanding for an average of 3 months. Now, I wish to facilitate the certification of this agreement and expedite it as soon as possible. The issues raised in your letter in relation to your decision in a separate matter, if they are relevant here then this is the time, in my opinion - the time and the place to deal with them.

PN46

THE COMMISSIONER: All right, Mr Thompson. You have a template agreement which has now come before me on a number of occasions. It is in substantially the same form in each of those cases. It raises particular issues and I have addressed those in a decision that was handed down on 16 March 2005.

PN47

MR THOMPSON: Was that decision made in relation to all eight applications with your Honour?

PN48

THE COMMISSIONER: No. I am saying to you that those issues are relevant to this application and they are relevant to other applications. They are not relevant to one application which is before me this morning, which relates to another award, but they are in my view relevant to all of the applications before this Commission which you have lodged in which the National Fast Foods Award is the relevant award.

PN49

MR THOMPSON: In relation to that decision, Commissioner, you referred to the fact that foreshadowed legislation would lead to benefits for permanent employees being removed. In its highly relevant consideration, this matter is not the same in that, there are more employees here, even under the foreshadowed legislation which is in no way to be considered in relation to the no-disadvantage test
today - - -

PN50

THE COMMISSIONER: My decision wasn't based on that, Mr Thompson. If you look specifically at paragraph 25 of that decision, it relates to the issues that I have - and those issues are relevant to this application as far as I am concerned, Mr Thompson.

PN51

MR THOMPSON: Yes, okay. In that case, Commissioner, you have said that the definition in your words of part-time employee includes the conditions for part-time employees employed when they are first employed under the award. Now that is incorrect. The definition of part-time employee is an employee who works less than 38 hours per week and who receives pro rata entitlements, I'm paraphrasing at the moment, to full-time employees and has reasonably regular rosters and hours. Under the terms of the agreement before you now, the employees have reasonably regular rosters and hours, they are permanent, they meet the definition of part-time under the award.

PN52

THE COMMISSIONER: Is that your submission, Mr Thompson?

PN53

MR THOMPSON: That's my first submission. My next submission would be that if you believe that they don't need the no-disadvantage test on the first blush and you are asking for undertakings of the nature outlined in your decision, I don't believe you have the grounds at this point in time to require those undertakings or accept those undertakings. Indeed, I don't believe I have the ability to prefer undertakings to you at this point in time because you haven't considered section 170LT(3) of the Act. You haven't determined whether or not this agreement is contrary to the public interest, if it were to be certified.

PN54

THE COMMISSIONER: Well I'll only have to deal with that, Mr Thompson, if I decide that undertakings would not make it certifiable.

PN55

MR THOMPSON: With respect, that's not correct, Commissioner. The Act provides for an agreement to be certified if it meets - that it must be certified - if it meets the requirements of section 170LT of the Act. The Act provides that where the Commission has grounds to refuse certification, then it can accept undertakings. At this point in time until you have fully considered the
no-disadvantage test which is passed if the agreement is not - is certifying the agreement is not contrary to the public interest, then you can not have grounds to refuse the application.

PN56

THE COMMISSIONER: Well, I hear you in relation to the section 170LT(3) then, Mr Thompson?

PN57

MR THOMPSON: Okay. Commissioner, you have recently certified a number of other agreements and I'll mention them to you now: R & A Meddings Pty Limited Certified Agreement 2005/2008, certified on 7 March 2005; Empty Jam Pots Pty Limited trading as Oporto Melbourne QV, certified 23 January 2005. There is one other, Wok in a Box Australia Pty Limited Certified Agreement 2004/2007, certified 25 January 2005. Each of those applications contains a definition of part-time employment that does not condone any of the conditions which you are now saying are required in order for this agreement to not be contrary to the public interest test - not to be contrary to the public interest.

PN58

I'm at a loss as to how these applications, the application before you today, differs in any way substantially from the nature of the agreements previously certified and how that, by certifying the agreement before you today, it would be seen as being contrary to the public interest. Furthermore - - -

PN59

THE COMMISSIONER: I only interrupted you to simply say that each of those agreements was certified subject to undertakings being given.

PN60

MR THOMPSON: I've seen the undertakings. They don't involve any of the conditions for part-time employment, Commissioner, unless - am I mistaken - am I mistaken on that point? That's my belief that there were no conditions for
part-time employment given its prior undertaking.

PN61

THE COMMISSIONER: The conditions related to the operation of the roster, Mr Thompson.

PN62

MR THOMPSON: May I understand how that is relevant? I haven't seen any of the - any of the certification, the documents of certification, any copies of the undertakings or - - -

PN63

THE COMMISSIONER: Well the undertakings are on file, Mr Thompson, and they do relate to the operation of the rosters which were provided to the Commission.

PN64

MR THOMPSON: Okay, can you explain to me how they do operate?

PN65

THE COMMISSIONER: Because the rosters were set rosters which can set hours, Mr Thompson, and the question that I have raised in relation to these and in relation to the definition of employees and it may be that Ms Rydley can answer these questions, I don't know if she can or not.

PN66

MR THOMPSON: We'll come to that in a minute.

PN67

THE COMMISSIONER: And that is the question about whether these employees have set hours and set rosters or not.

PN68

MR THOMPSON: Thank you. If I can see the undertakings, I'll try and get a copy of the file. Usually they are attached to the certification I had believed, given that they weren't attached to the copy of the certification - the certificate of certification that they had not been in it so I'll have to revise my understanding of that.

PN69

THE COMMISSIONER: The certificate specifically indicates that the certification was made subject to undertakings.....

PN70

MR THOMPSON: Not that I can see. Only last week, Watson SDP, certified an agreement for a Subway store in Victoria on substantially similar terms. He found that the agreement did not fail the no-disadvantage test whatsoever and did not need to consider the public interest. There are over a hundred other examples of agreements in substantially similar terms being certified by this Commission. Indeed I think all but two people on this panel have certified agreements in substantially similar terms. The office of the employment advocate publishes a framework, Australian Workplace Agreement that is freely available and is downloadable in a fixed form which can be simply offered to employees, signed and submitted.

PN71

It does not contain any obligations, restrictions, or otherwise, for part-time employees that's similar to the award. The McDonalds Victoria Consent Award does not contain the same restrictions or obligations on a business that the National Fast Food Award does in these terms that you're requesting to be included. Last week in question time, the Leader of the Opposition made an interesting point regarding this that might be relevant to this issue, in my opinion. He mentioned that the Australian Bureau of Statistics have found that 2 million employees - sorry, 2 million people including 600,000 part-time employees, have stated that they would like to find more work, would like to be able to work more hours.

PN72

The award and the obligations contained in the award I believe, clearly restrict employees from having the flexibility, the ability to work more hours. It is too onerous in a business of this type to include those types of obligations. Here the agreement has met the same definition of part-time employment as the award. The employees are permanent. The foreshadowed legislation, as much as it is completely irrelevant to this matter, would have no impact. The decision to not certify an agreement of this type would mean that the employees fall back to, if they don't sign the WPA's, fall back to the state safety minimum which contains no conditions on restriction of hours for part-time employees. For all of those reasons, Commissioner, I submit that it could not be found that certifying this agreement in its current terms would be contrary to the public interest.

PN73

One final one is that the agreement that's being proposed contains rates significantly above the McDonalds Consent Award, the Pizza Hut STA Certified Agreement, the KFC Employees' STA Enterprise Agreement 2004, the TPF Restaurant, Hungry Jacks Certified Agreement significantly - we're talking a dollar and fifty cents an hour for these permanent part-time employees. Certifying an agreement that gives employees permanency and more quality for the employment with a higher hourly rate than other relevant awards in this sector again could not be seen to be contrary to the public interest. The making of these employees, by defining them and making them permanent, giving them the benefit of permanent employment.

PN74

It also gives these employees access to training, government assisted training, progressive in the job, the ability to take car loans and other types of loans because of the quality of their permanent employment and the recognition of that publicly. For the reasons stated, Commissioner, I believe that it would not be contrary to the public interest to certify this agreement. As far as it is relevant in relation to section 170LT, and I believe that it is, the interests of the parties would also be included as constituting the public interest. The interests of the parties in this case have been clearly displayed by majority approval of 94 per cent. Clearly the employees want the flexibility and the permanency that comes with this agreement.

PN75

To not certify the agreement, to claim that the agreement is contrary to the public interest, would be to deny those employees - what they have - the thing that they have chosen to make - the agreement they have chosen to make directly with their employer. If it pleases the Commission.

PN76

THE COMMISSIONER: So they're your submissions in relation to both 170LT(2) and 170LT(3)(a), Mr Thompson?

PN77

MR THOMPSON: If there are other issues in relation to the no-disadvantage test, I mean there are a number of errors of fact in the decision to which you are referring. If that decision is being applied directly to this matter then I'll go to the errors of fact.

PN78

THE COMMISSIONER: Well, I'd like you to point it out to me then.

PN79

MR THOMPSON: You've stated that employees are entitled to over time - I can't actually apply those. I need to see whether - I've never seen a decision made in relation to one application being applied on all fours, to separate applications.

PN80

THE COMMISSIONER: Well I might apply..... on all fours, but there are certain similarities in that, my reading of it the terms of this agreement are substantially the same in terms of the agreement in that case, and in terms of the award are precisely the same.

PN81

MR THOMPSON: In terms of the award? Oh, the award is the same award.

PN82

THE COMMISSIONER: The award is the same award.

PN83

MR THOMPSON: I need to find that particular decision, but I know that you said that the award does not, - sorry, the agreement does not comply with the award. Well, that's not a relevant consideration, Commissioner. Your words are that the agreement does not comply with the award. There is no reason that the agreement must comply with the award.

PN84

THE COMMISSIONER: I said the definition, part-time. That's the issue that you're raising.

PN85

MR THOMPSON: Does not comply with the award.

PN86

THE COMMISSIONER: I'm referring to - - -

PN87

MR THOMPSON: It doesn't need to comply with the award, with respect.

PN88

THE COMMISSIONER: No, it doesn't have to comply with the award, provided it passes the no-disadvantage test.

PN89

MR THOMPSON: You've stated also that the agreement does pass the
no-disadvantage test and that employees would receive a marginal increase to their rate of pay.

PN90

THE COMMISSIONER: I think I stated that on the balance - I think I stated that there would be a marginal increase, I think of something like 5 cents an hour in the case of this application before me today. As I read it, the difference is one of 5 cents an hour between a part-time employee is paid under the National Fast Food Award and what a part-time employee, under the terms of this condition would be paid. While a full-time employee, I think is the same. It's 5 cents an hour, as I understand.

PN91

MR THOMPSON: But they are paid more.

PN92

THE COMMISSIONER: Yes.

PN93

MR THOMPSON: So the issue is only regarding - you're saying that - - -

PN94

THE COMMISSIONER: The issue is then a question - the no-disadvantage test is not solely determined on the issue of whether the hourly rate is - - -

PN95

MR THOMPSON: It's a global no-disadvantage test - - -

PN96

THE COMMISSIONER: It's a global test, yes.

PN97

MR THOMPSON: In relation to that decision, it appears to me that the global
no-disadvantage test has come down to a consideration of an irrelevant fact, that is that those conditions can't be applied to these employees anyway. Those conditions for rostering of part-time employees cannot be applied to these employees under the award and therefore they are irrelevant and those conditions are not part of the definition of a part-time employee.

PN98

THE COMMISSIONER: Will you address me then, on the issue of over time and on the issue of sick leave because they are the only matters that I raised?

PN99

MR THOMPSON: Sick leave, you have stated that it does not accumulate. I'm sorry, I had it with me on the way here - - -

PN100

THE COMMISSIONER: My understanding is in relation to part-time employees that sick leave doesn't accrue, it doesn't accumulate from year to year, so because there is a payout of the sick leave, there is in fact an entitlement at the discretion of the employer of unpaid sick leave but there is no - under the terms of the award an employee who is a part-time employee or a full-time employee, has an entitlement for a certain number of days sick leave per year and if they don't use it then accrues to the next year.

PN101

MR THOMPSON: Yes, it's not a benefit though is it? It's an entitlement to take sick leave.

PN102

THE COMMISSIONER: Yes.

PN103

MR THOMPSON: I don't see that there'd be any problem in accruing sick leave entitlements, untaken sick leave under this agreement. If that is the straw that breaks the camel's back, so far as we're here to negotiate an agreement, then I'm sure that we could provide an undertaking that - - -

PN104

THE COMMISSIONER: That's all I was seeking - - -

PN105

MR THOMPSON: If, provided that you would find that it's contrary to the public interest to certify the agreement without that undertaking.

PN106

THE COMMISSIONER: I haven't dealt with the other issue, which is the
over time issue, Mr Thompson, but what I'm saying is in relation to sick leave, under normal circumstances a full-time or a part-time employee accrues it. Under the terms of this agreement they don't.

PN107

MR THOMPSON: Not under all awards but under this award they do.

PN108

THE COMMISSIONER: Under normal circumstances being the terms of the award which you have proposed and which I have accepted as being the appropriate award for the purposes of the no-disadvantage test.

PN109

MR THOMPSON: Yes.

PN110

THE COMMISSIONER: What I'm saying to you, under the terms of that award, a part-time employee is entitled to sick leave, which they can use as carer's leave, and that that accrues from year to year if they don't use it. Under the terms of this, there is no entitlement to sick leave as per the award conditions, there is a buy out effectively of sick leave, and there is an entitlement to what is referred to as, reasonable unpaid sick leave where legitimate circumstances exist.

PN111

MR THOMPSON: What is reasonable?

PN112

THE COMMISSIONER: That is a feeling by.....

PN113

MR THOMPSON: Would you like some clarification on that?

PN114

THE COMMISSIONER: Yes, I would.

PN115

MR THOMPSON: Reasonable sick leave would be determined by taking into account the same conditions and issues that are considered when a full-time employee takes sick leave. If it assists the Commission and I'm sure that the employer could inform them about the taking of sick leave and how it's being dealt with currently because it won't be changing between the AWA's and the certified agreement, I believe.

PN116

THE COMMISSIONER: The other issue is the question of overtime and I think this is the question which derives from the fact that in terms of the agreement overtime only applies in excess of, in particular circumstances where the employee has worked in excess of 10 hours in 1 day or works outside the hours of 7 am and 11 pm or in excess of an average of 38 hours per week, averaged over a year. Under the terms of the award, a part-time employee is entitled to be paid overtime hours worked outside the agreed hours.

PN117

MR THOMPSON: There are no - the hours here are flexible, that is - - -

PN118

THE COMMISSIONER: And there are no agreed hours - - -

PN119

MR THOMPSON: There are 600,000 employees in Australia wishing to do more work. I think that the payment of overtime because of the fixed hours is a contributing factor to that, if not the contributing factor to that. Once again, Commissioner, that is an irrelevant consideration to the extent that these employees would not have been employed subject to those conditions. This award doesn't apply at this workplace currently.

PN120

THE COMMISSIONER: No. it doesn't apply - - -

PN121

MR THOMPSON: And when it says for the clauses when they are first employed - - -

PN122

THE COMMISSIONER: Mr Thompson, the award does not apply but it is the relevant award for the no-disadvantage test. You've put to me that it is the award that I should consider in terms of applying the no-disadvantage test and that's all I'm doing.

PN123

MR THOMPSON: I haven't conveyed my message clearly enough. The point is, Commissioner, that when you're comparing the agreement to the award - the terms and conditions that would otherwise apply to the employees under the terms of the no-disadvantage test, you do not - the intention from my reading of
section 170XA of the Act, is that you would have to look at these employees, how they're currently being employed and how the award would apply to them.

PN124

None of these employees would have been given the fixed conditions of employment, fixed rosters, all of the other things within the award regarding
part-time employee's rostering. Sorry I'll take that back, it's a little broad, but the conditions set out for rostering and fixing of rosters for part-time-employees - because those conditions only come into effect if they are made when the employee is first employed. It doesn't say when the employee is employed a year after they've been taken on. These employees are existing employees.

PN125

THE COMMISSIONER: I know they're existing employees, but on my reading of the statutory declaration, 21 of the 24 employees are casuals.

PN126

MR THOMPSON: When they are first employed.

PN127

THE COMMISSIONER: I'm only reading the statutory declaration. The statutory declaration which has been lodged in this matter says that 21 of the
24 employees are casuals. A casual is engaged from one period of employment to the next. You are now proposing that these people be engaged under the terms of this agreement as part-time employees. It is a new engagement, Mr Thompson.

PN128

MR THOMPSON: But they would not - I wish we could tell the OEA that Commissioner, because they certainly don't apply the same interpretation of new employee as is being proposed today. In my opinion they would not trigger those conditions and in my opinion, as I've said, those conditions aren't in the public interest anyway. They are not in the interest of these employees, they are not in the interests of people who wish to have more work, they are not in the interests of a small business that needs additional flexibility. If the overtime paid in relation to those rosters - although you can still vary the rosters under that award with consent, so it's not as though they are always or ever be getting overtime.

PN129

THE COMMISSIONER: No, you can vary the rosters with consent, you can also vary the hours, with written consent too.

PN130

MR THOMPSON: It would be irrelevant to consider that they will be getting overtime if every change was - - -

PN131

THE COMMISSIONER: You're assuming that every time their hours are increased, there's a written consent to that - - -

PN132

MR THOMPSON: You can't presume otherwise.

PN133

THE COMMISSIONER: I can only go on the basis of what the award says,
Mr Thompson.

PN134

MR THOMPSON: And under the award, they wouldn't be entitled to overtime.

PN135

THE COMMISSIONER: I've noted your argument.

PN136

MR THOMPSON: As it is Commissioner, I don't believe that certifying this particular agreement, for these 20 odd employees in Mildura, will be contrary to the public interest for all the reasons stated. If it is, in your opinion, then I believe we have a right under the Act to offer undertakings pursuant to
section 170LB to satisfy you that is not contrary to the public interest.

PN137

THE COMMISSIONER: Yes, certainly Mr Thompson, if that's my view then I'll do as I've done previously and give you the opportunity to deal with that.

PN138

MR THOMPSON: If it pleases the Commission.

PN139

THE COMMISSIONER: Thank you. I think I need to consider the submissions you just made Mr Thompson. I don't intend to do a decision off the cuff. I will indicate to you for the purposes of the employer and employees in this matter that if I either come to the view that this agreement passes the no-disadvantage test, or that even though it doesn't, it would not be contrary to the public interest to certify it, or that even though it doesn't you should be given the opportunity to give undertakings in relation to it, then I will deal with this agreement on those terms and you can take it that should the agreement be certified the date of certification will be today's date.

PN140

MR THOMPSON: Thank you Commissioner. Will that decision apply to all the other matters that are with you currently as well?

PN141

THE COMMISSIONER: If you - Mr Thompson, I think I've indicated in relation - certainly to some of those matters that have been before me, I think in relation to all of them, that the date of certification would be the date that the matter was heard.

PN142

MR THOMPSON: In one of those matters, two of those matters actually, you've indicated that the agreements did pass the no-disadvantage test in your opinion and it was only subject to looking at rosters. You've had those rosters for six or eight weeks.

PN143

THE COMMISSIONER: I'll have to go back and have a look at that
Mr Thompson because I'm not aware - I thought that all of those agreements were in the same position but I will look at that.

PN144

MR THOMPSON: Not from what you've said. Thank you Commissioner.

PN145

THE COMMISSIONER: All right then this application is adjourned.

<ADJOURNED INDEFINITELY [12.27PM]