AG2006/4580, Transcript of Proceedings [2006] AIRCTrans 1049 (8 September 2006)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 15676-1

SENIOR DEPUTY PRESIDENT RICHARDS

AG2006/4580

ACTION SUPERMARKETS PTY LTD
AND
SHOP, DISTRIBUTIVE AND ALLIED EMPLOYEES ASSOCIATION
cl.14 Sch. 9 - Appl’n whether an employer is bound by a pre-reform cert. agt.
(AG2006/4580)

BRISBANE

3.35PM, FRIDAY, 25 AUGUST 2006

THE FOLLOWING PROCEEDINGS WERE CONDUCTED VIA VIDEO CONFERENCE AND RECORDED IN BRISBANE

PN1

MR G JOHNSON: I appear for Action Supermarkets Pty Ltd.

PN2

MR L GILLESPIE: I am from the Shop, Distributive and Allied Employees Association. I have handed a copy of my appointment to your associate.

PN3

THE SENIOR DEPUTY PRESIDENT: That's fine. I have that in front of me and leave to appear is granted of course. So I have Mr Johnson from the outgoing employer if I can put it that way and I have Mr Gillespie as the representative organisation of employees for purposes of the provision of the Act under which we are dealing.

PN4

MR GILLESPIE: I should add that I have with me MR C KETTER.

PN5

THE SENIOR DEPUTY PRESIDENT: Good. Thanks Mr Gillespie and for the incoming employer if I'm correct using that parlance, the new Act, I have in Adelaide.

PN6

MR A SHORT: Yes. I seek leave to appear for the incoming employer, Dramet Pty Ltd and also if it's convenient to the Commission with the camera I might stay seated.

PN7

THE SENIOR DEPUTY PRESIDENT: That's fine. That's the usual practice too, Mr Short, so please remain seated. Thanks. It will keep you in suitable distance to the satellite mike as well. Well look we have before us an application in AG2006/4580 in relation to schedule 9, Part 4 thereof in respect of clause 14 and for further particularisation if I recall from memory 14(1)(a) of the Act.

PN8

That is for an application for the Commission to make an order that the incoming employer, Dramet Pty Ltd, is not and will not be bound by the Action Supermarkets Pty Ltd and SDA Agreement 2004, the agreement code for which is AG839107. I think just for preliminary sake are all the parties who are here today in agreement that that's the correct representation of the pre-reform certified agreement?

PN9

MR JOHNSON: Yes your Honour.

PN10

THE SENIOR DEPUTY PRESIDENT: Mr Johnson, yes. Mr Gillespie?

PN11

MR GILLESPIE: Yes Senior Deputy President.

PN12

THE SENIOR DEPUTY PRESIDENT: Mr Short, is that also the detail – this is a rather important matter, it's a technical but important matter - - -

PN13

MR SHORT: Yes.

PN14

THE SENIOR DEPUTY PRESIDENT: Everyone confirms that we're talking about the same agreement with the same agreement code.

PN15

MR SHORT: That's my understanding, yes.

PN16

THE SENIOR DEPUTY PRESIDENT: Good. Thanks very much. I'll represent that in the prospective order that will issue if the submissions support me making an order in relation to these matters. I'd encourage the parties to check with great care the accuracy of the description of the certified agreement and its agreement code. If there's an error I can always promptly amend the order consequently.

PN17

For current purposes look I should say we've had the benefit of discussing this matter by way of directions conference to ensure that all our processes and expectations are in alignment and we've done that elementally for reason that this is, if I might, unless I haven't been keeping myself up to date, I think this is the first application under this particular schedule under the amended Act and as such we will ensure that we have a careful view of the or follow carefully the relevant statutory steps.

PN18

Having said that it's probably best I think and more expeditious if I simply work through the statutory provisions sequentially and invite the parties to make their relevant submission at the appropriate time. I have an application before me that has been made before the, what is that the Act defines as the transfer time and as being an application that has been made by, consequently the appropriate person, that being the outgoing employer in the form of Action Supermarkets Pty Ltd.

PN19

In addition to that I need to satisfy myself or rather for purposes that are pre-conditioned for making the order, I should say at clause 14 of the schedule, of Part 4 of schedule 9 the Act requires that the applicant, that being the outgoing employer in this context, needs to provide reasonable steps to give written notice of the application to persons who may make submissions and such persons are the persons who are relevantly identified in clause 18.

PN20

Now what I'll invite Mr Johnson to do is to outline to me what reasonable steps have been made in respect of providing an opportunity to make submissions in relation to, sorry I should rather say what reasonable steps have been taken by the outgoing employer to give written notice of the application so that submissions may be given. Mr Johnson, would you like to indicate that?

PN21

MR JOHNSON: Thank you Senior Deputy President. If I may firstly I'd like to hand up a copy of a memorandum sent to employees of the eight stores which form part of the application in clause 1 of the application. My friends from the union have a copy and Mr Short is certainly aware of the contents of it although I haven't had time to send him the signed copy which I've just handed up. If I may speak to that or would the Senior Deputy President prefer to read it himself?

PN22

THE SENIOR DEPUTY PRESIDENT: I'll just quickly examine it. I've almost finished it. Yes thanks.

PN23

MR JOHNSON: If I may make one correction to the document, Senior Deputy President. In the very last line of the second page the memorandum refers to the notice of hearing being attached for the employees' information. That's in fact incorrect. It wasn't attached but a copy of the application most certainly was attached and I should indicate to the Commission that this memorandum wasn't just posted on some obscure noticeboards.

PN24

Copies of it together with the application were handed out to all of the employees at the Action Supermarkets. I'm also advised that copies were placed on the noticeboards at the Action Supermarkets in question and that additional copies were left in the lunch rooms at each of the supermarkets mentioned.

PN25

THE SENIOR DEPUTY PRESIDENT: So that for the purposes of clause 17 reasonable steps have been given to give written notice of the application to persons who may make submissions. Can we now come to – and look I just, I'll invite the parties to, and Mr Johnson and perhaps to some measure, to the extent he wishes, Mr Gillespie on behalf of the SDA to make some broad submission to me as to intent and purpose to contextualise that the matter at least for purpose of transcript and the retained record even though I do have knowledge of what the matters that are afoot.

PN26

So we'll come to that in due course but just in terms of the sequence and the Act, the purposes of clause 18, clause 18 states that or rather sub clause 18(1) states that before deciding whether to make an order under sub clause 14(1) in relation to pre-reform certified agreement, the Commission must give the following an opportunity to make submissions.

PN27

Well first of all the applicant, Mr Johnson, clearly on behalf of Action Supermarkets you have an opportunity to make that submission and you will make that in due course and before such time as the transfer time is reached, the other persons who are capable of making and who must have an opportunity to make submissions are the employees of the outgoing employer. The incoming employer who's represented by Mr Short here today and the organisation of employees that is bound by the pre-reform certified agreement and who in this event is represented by Mr Gillespie.

PN28

I should also say that placitum 2(d) also indicates that an opportunity should be given to make submissions to an organisation of employees that is entitled under its eligibility rules to represent the industrial interests of employees who have been referred to and are subject to the existing agreement. The Commission's required to give those persons an opportunity to be heard. The conventional and historical way that that is attained is by way of providing a public listing of the matter which details the relevant statutory provision under which the application has been made.

PN29

That listing has been made and from the appearances taken here today there is no such person who wishes to make submissions and, or no such organisation who wishes to make submissions and therefore that statutory requirement is therefore discharged.

PN30

MR JOHNSON: If I may assist the Commission in relation to that because I didn't turn to it in my earlier submissions, copies of the notice of hearing issued by the Commission were, again handed out to all employees of the Action Supermarkets listed in the application. Copies were posted on the noticeboard and copies left in the lunch room of each of the eight Action Supermarket stores.

PN31

THE SENIOR DEPUTY PRESIDENT: The question that I have though in relation to that and I'll sort of work back to that is that the statutory requirements that the Commission must give the following persons an opportunity to make submissions, did the employees concerned, for the purpose of clause 18, were they aware that they were able to make submissions or were they aware that there was a hearing at a particular time?

PN32

MR JOHNSON: They were aware that there was a hearing at a particular time, Senior Deputy President and they were aware of the intent of that hearing, Senior Deputy President.

PN33

THE SENIOR DEPUTY PRESIDENT: Perhaps this is also a question I could ask of Mr Gillespie. Mr Gillespie, are you aware whether or not the employees, for the purposes of clause 9, understood that they had an opportunity themselves to make submissions or are you of the view that their, the function of their or rather that their interests in regards to, in their desire to make any submissions in relation to this matter is really one that fell to the representative organisation of employee, of that being the SDA?

PN34

MR GILLESPIE: Of course Senior Deputy President not every one of those employees is necessarily a member of this organisation but I would raise the point that the clear imputation is that there will be a hearing at a given time. The notice of listing has indeed been provided to the relevant employees. They had received via the agency of this correspondence which has been handed up today, information to the effect that the application had been filed in the Commission so the clear indication I would suggest is that they would have a cognisance of their capacity if they so desired to appear before this tribunal and make submissions if they so desired.

PN35

THE SENIOR DEPUTY PRESIDENT: Good. I'll deal with this matter shortly but, I'll come back to this matter shortly and so there really, or no look I'll deal with this now rather. So 18(2)(a) of the Act and 18(2)(d)(ii) of the Act provide an opportunity for employees to make submissions. That is directly and indirectly through, that is by (d)(ii), indirectly by way of a representative. Now it appears to me that the purpose of clause 18 is to, as it states is that the Commission, that is this Commission must give the following an opportunity to make submissions.

PN36

That actually to my mind suggests that there may need to be an express opportunity not, perhaps not necessarily at the Commission's instigation but at least the Commission must provide an opportunity for employees to make submissions and for the purpose of giving effect to that the employees themselves would need to know that they are in a position themselves at their initiative to make submissions or else nominate a person or an agent to make those submissions on their behalf.

PN37

Now I'm not necessarily satisfied on the basis that the, well I'm not satisfied on the basis that the, at what is the effective provision of the listing details and the, in the notice of the application effectively conveys a sense that the employees may make directly or indirectly submissions in relation to that application and at the time of that notice period. Now what I'll invite the parties to do and I don't, I'm not of the view this is fatal to the application in any way whatsoever but I'm just wondering as one practical means of dealing with this, whether it might be possible in each of the relevant sites over say, over a period to close of, well sorry I'll invite submissions from you in this.

PN38

Whether we might be able to give, whether or not we might be able to put on the noticeboards in each of the relevant sites, that is the usual noticeboard for purpose of notices, an indication that a hearing in relation to this matter was conducted this afternoon at today's date in accordance with the listing as distributed and the Commission has indicated that any employee who is subject to the agreement in question may make a submission to the Commission or else nominate a representative to make such a submission to the Commission.

PN39

And that they have perhaps – and I say this no more as indicatively, until close of business next Wednesday say, afternoon to make that submission. And in the event that I hear nothing I would, you know, given that I'll hear sufficient this afternoon to satisfy me I would then issue the order.

PN40

MR SHORT: Senior Deputy President?

PN41

THE SENIOR DEPUTY PRESIDENT: Mr Short. Yes?

PN42

MR SHORT: Perhaps if I could just comment on that and that is certainly one option. Could I respectfully suggest, sir, that I think the rules address how this notification process is to be undertaken. Section 593 as I read it requires a copy of the application to be provided and clearly that's happened. And rule 64 indicates that the employees need to be provided by the applicant with both the application and the completed notice of hearing and what I've heard from Mr Johnson is that that has happened.

PN43

And the rules appear to contemplate that those steps are sufficient to satisfy the requirements of schedule 9 clause 18 and as Mr Gillespie understandably put, it would make sense if people provided with the notice of hearing that they would understand that they have an opportunity to do something if they're so minded. And I would invite the Commission in light of the provision of those materials and the scheme of the rules to come to a view that the employees have indeed been given the relevant opportunity to be heard and that the matter could proceed at this time.

PN44

THE SENIOR DEPUTY PRESIDENT: Look I take your point, Mr Short, but I still can't satisfy, I can't be satisfied substantially that the employees having the notice of listing and a copy of the application necessarily and as a consequence form the view that they are themselves, they are themselves capable of making submissions and capable under the Act of nominating a person or agent to make submissions on their behalf. I'm not too sure whether - - -

PN45

MR SHORT: I - - -

PN46

THE SENIOR DEPUTY PRESIDENT: No you see what I mean, I think they are distinguishable matters and I think the rules effectively deal with the notice in the application but I'm not necessarily satisfied that the rules discharge the statutory obligation to make an opportunity available for persons to make submissions unless there's some indication that has been given that they are so capable of making submissions. And I say this not out of a desire to be excessively technical but out of a desire to make sure that the order that may issue in relation to this matter is properly founded in all regards and can give rise to no challenge or contest at a future date which I - - -

PN47

MR SHORT: That's certainly how I understood your observation.

PN48

THE SENIOR DEPUTY PRESIDENT: Yes. So look I think, look I take your point and I know the rules may well have coverage in relation, provide some procedural guidance as to some elements of the, particularly the operation of clause 17 but I'm not necessarily satisfied that the rules give sufficient, have sufficient implication for giving full effect to the purposes of clause 18 and that is the capacity of employees to make submissions.

PN49

Look so this, I return again to that option as to whether or not we might proceed on the basis and I invite any submissions from Mr Johnson or Mr Gillespie and without a desire to cause any over delay because I know there's, we need to get on with this matter but we also need to bring certainty to it as well that in that light, in light of that observation whether or not you think at the completion of today's proceeding we could give effect, a notice of the sort that I mentioned before. Have it sit on the noticeboards say for a period of 48 to 72 hours. In the event there was no submission I would then simply, given that I'd be satisfied doing so later today, issue the order.

PN50

MR JOHNSON: If I may Senior Deputy President, I had a brief aside with my friends from the union and we would certainly give that undertaking. I think logistically it might be a tad difficult to have that on the noticeboards by the end of today but certainly we could have it on the noticeboards by the first thing Monday morning and we'd propose to put it as a joint communique.

PN51

THE SENIOR DEPUTY PRESIDENT: It's logistically a minor task, isn't it I think from, am I right?

PN52

MR JOHNSON: Our HR Manager is in Perth and our assistant HR Manager is currently at university undertaking studies.

PN53

THE SENIOR DEPUTY PRESIDENT: Yes well, yes I should never say things like that should I?

PN54

MR GILLESPIE: We've just indicated to Mr Johnson that we'd be quite happy to participate in the joint exercise along the lines that you've suggested, Senior Deputy.

PN55

THE SENIOR DEPUTY PRESIDENT: The times I think are matters for yourselves. To my mind there would have to be at least a 48 hour period which there, a clear 48 hour period where there's a simple clear notice that refers to the application and the notice of listing as previously issued and in light of that indicates that the employees are capable of making submissions in this matter or nominating a person to make submissions on their behalf and if they wish to do so they should contact my associate on an email address or a telephone number.

PN56

And I'll give you those at the close of the proceeding and if nothing comes of that then the order, assuming I make one would simply issue but it would therefore mean that – and I take, again I take what Mr Short has said and Mr Gillespie you made a similar submission yourself about whether it's a logical consequence of the listing, someone would assume that they have a capacity to make a submission but I think this would put the matter beyond doubt if we approached it in that way. So look we'll leave that matter there.

PN57

The Act is, actually says, does not say a great deal about the degree of satisfaction that the Commission needs necessarily to have for the purpose of issuing the order but let's take that as being that there has to be a reasonable case made that's persuasive for the Commission to exercise its power to make the relevant order. So look in that regard and I think it would be useful for the proceedings to have the transcript in these matters to be - to benefit from a general submission about context in relation to this matter.

PN58

So look Mr Johnson and to the extent necessary, Mr Gillespie and again to the extent necessary Mr Short, would you like to make some comment on the context in relation to this matter. Why the application has been brought forward and why the, and in particular, why the application under 14(1)(a) has been made as opposed to 14(1)(b)?

PN59

MR JOHNSON: Yes. Thank you Senior Deputy President. By way of background information, Senior Deputy President, Metcash wholly owns Action Supermarkets Pty Ltd and purchased Action Supermarkets after it had entered into the Action Supermarkets Pty Ltd and SDA Agreement 2004. Dramet is a company which trades in supermarket business as Drake Food Markets and is largely South Australian based and employs some 3000 employees.

PN60

Senior Deputy President the application before the Commission refers to the acquisition of eight listed supermarkets by Dramet which will take place on a progressive basis, the first of which will transfer across on 9 September 2006. As set out in the application Dramet proposes to offer employment to suitable employees engaged by Action at the eight stores. There are currently approximately 800 employees engaged by Action at those stores and covered by the agreement.

PN61

Negotiations, Senior Deputy President, are underway with the SDA in relation to a collective agreement to cover Dramet's work force. Those negotiations are well progressed with the vote expected within the next month. The intent of Dramet and the SDA is that the new Dramet collective agreement will cover the employment of all Dramet employees including the transferring Action employees.

PN62

Senior Deputy President, the parties acknowledge it is desirable that all Dramet employees be subject to the one collective agreement and discussions have taken place in respect of industrial arrangements for transferring the Action employees. Paragraph 6 of the application, Senior Deputy President, refers to Dramet undertaking to continue to apply to the transferring Action employees the terms and conditions of the Action agreement until the proposed Dramet collective agreement commences operation from which time Dramet would apply the Dramet Collective Agreement.

PN63

That course, Senior Deputy President, and the order sought in this application have been agreed by the SDA but of course they would be making their own submissions in relation to that matter. All affected Action employees have been provided as we have indicated, Senior Deputy President, with a memo explaining that process. In relation to why the application is seeking an order to be made under 14(1)(a) and not 14(1)(b), the matter really goes to the surety of the date of 9 September but it doesn't limit the Commission taking into account or making an order under 14(1)(b) that the incoming employer is or will be bound by the pre-reform certified agreement but only for the period in that order.

PN64

The order, Senior Deputy President, must specify the day from which the order takes effect and that day must not be before on which the order is made or before the transfer time. For that reason we are seeking the order to apply from 9 September 2006. Due to the timing of the application, Senior Deputy President and the proposed Dramet agreement, Action has brought this application as it is currently the only possible application, applicant for an order under schedule 9, clause 16 and Dramet and the SDA I understand support the application.

PN65

The order sought, Senior Deputy President, is that the Action Supermarkets Pty Ltd and SDA Agreement 2004 will not bind Dramet Pty Ltd. Senior Deputy President, the Commission has the power to make the order under schedule 9, clause 14. It would be in light of the undertaking set out in ground 6 of the application. We seek that the order be issued. If the Commission pleases.

PN66

THE SENIOR DEPUTY PRESIDENT: Good. Thanks Mr Johnson. Mr Gillespie, do you have anything to add to that?

PN67

MR GILLESPIE: May it please the Commission. We corroborate the grounds which support this application. As to your reference to the usage of section 14(1)(a) rather than 14(1)(b) well quite clearly the intent is that the current Action agreement is to be displaced in its entirety by the agreement which is currently under negotiation and which will very shortly be voted upon. So there's no question of any partial application of the Action agreement in the period post dating the date of this transfer.

PN68

THE SENIOR DEPUTY PRESIDENT: You also agree that the order should, once issued ought, when issued if issued should commence on 9 September 2006?

PN69

MR GILLESPIE: That appears to be the most appropriate date given that that is the date of the initiation of the transfers, it's been nominated in the application. We confirm the consent of the organisation which I represent towards this application and in all other respects corroborate the grounds. The one thing, the one element of requisition which we would advance at this point in time in order to complete the exercise is that pursuant to clause 6 or ground 6 which supports the application, we do receive today confirmation on the part of Dramet to the effect that that company undertakes to continue to apply the transferring Action employees the terms and conditions of the Action agreement until such time as the collective agreement currently being or which will very soon be balloted upon, replaces that agreement. So upon receipt of that undertaking our requirements will be totally accommodated and our consent for the application is thereby confirmed.

PN70

THE SENIOR DEPUTY PRESIDENT: Good. Thanks Mr Gillespie. Mr Short, as the incoming employer?

PN71

MR SHORT: Yes. Thank you, Senior Deputy President. Dramet undertakes to continue to apply to transferring Action employees the terms and conditions of the Action agreement until the proposed Dramet Collective Agreement commences operation. From that time it would apply the Dramet Collective Agreement. It supports the application. It supports the submissions that Mr Johnson and Mr Gillespie have put forward in relation to the operative date of the order. It is my understanding that the first store will transfer on 9 September 2006 and on that basis that would be the appropriate date.

PN72

I understand that Ms Fraser from Dramet is in the Commission precincts before you and I hope she's nodding her head indicating that 9 September is a confirmed date and that we ought specify no other date.

PN73

THE SENIOR DEPUTY PRESIDENT: Well - - -

PN74

MR SHORT: And if she is doing that then I'm comfortable, there's nothing else I need say, sir.

PN75

THE SENIOR DEPUTY PRESIDENT: Well I think you can take comfort.

PN76

MR SHORT: Thank you sir.

PN77

THE SENIOR DEPUTY PRESIDENT: From what I've observed. Thank you Mr Short. Well look in my view bar the matter that I've referred to, the submissions that are before me are persuasive that I should make an order in the terms as sought. I do however want to ensure that, whilst not wanting to appear excessively technical in these matters or facilitative in disposition, I do want to ensure that absolute certainty is given to the order and in its proper foundation so that the parties can take comfort in that order as achieving their desired goal in the future and I will ask if the parties could carry out that procedure that we've mentioned earlier.

PN78

Subject to there being no response by either the employees or, and/or their agents or representatives or whomsoever for the purposes of the Act's, for the purposes of clause 18(2)(d)(ii), that is a person acting on the employees behalf then I propose to issue the order promptly at the conclusion of, at close of business next Wednesday which is, if I'm correct is 2 September? Sorry no, sorry next Wednesday is 30 August.

PN79

I would be happy if in the interim Mr Johnson you might be able to – as I think you'll have carriage of this matter be able to give me a copy of the document that will be placed on the respective noticeboards in relation to the capacity to make submissions by the employees themselves directly or by a person that they so nominate as their representative for the purpose of the file.

PN80

MR JOHNSON: Yes we will certainly manage that.

PN81

THE SENIOR DEPUTY PRESIDENT: Which would include the date, the close of, the date of effectively close of those submissions should any be made. I will also in the interim and perhaps later this afternoon issue to the incoming and outgoing employers and the SDA a copy of a draft order in respect of this matter which they can peruse over the next day or so and provide any comment as to whether or not it gives proper effect in their view to the application as sought.

PN82

I usually deal with draft orders that come in from applicants in this matter but I have no difficulty presenting my own draft order in simple terms but everyone could just check that its terms are accurate and so that once issued it would not be subject to any further contest or debate. So then, well are there any other submissions that need to be made or any questions that need to be asked about the minor procedure we need to now execute to give effect to the application? Mr Johnson, nothing for you?

PN83

MR JOHNSON: Nothing.

PN84

THE SENIOR DEPUTY PRESIDENT: Mr Gillespie?

PN85

MR GILLESPIE: Nothing to add thank you.

PN86

THE SENIOR DEPUTY PRESIDENT: Mr Short, anything from you?

PN87

MR SHORT: No. Thank you sir.

PN88

THE SENIOR DEPUTY PRESIDENT: Okay. Thanks very much everyone. We're adjourned.

<ADJOURNED INDEFINITELY [4.10PM]