AG2006/52, Transcript of Proceedings [2006] AIRCTrans 188 (16 February 2006)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 14139-1

SENIOR DEPUTY PRESIDENT WATSON

AG2006/52

APPLICATION BY PEOPLELOGIX PTY LTD
s.170LK - Agreement with employees (Division 2)
(AG2006/52)

MELBOURNE

2.44PM, THURSDAY, 02 FEBRUARY 2006

PN1

MR D CUTTS: I seek leave to appear on behalf of the appellant.

PN2

THE SENIOR DEPUTY PRESIDENT: Yes leave is granted, Mr Cutts. Yes?

PN3

MR CUTTS: Thank you, your Honour. With me on my right is MR A TURNER, the warehouse manager of PeopleLogix and MR A SINGH or Akash, who is the employee representative. If the Commission pleases.

PN4

THE SENIOR DEPUTY PRESIDENT: Yes. Thank you. Do you have any submissions you wish to put to me?

PN5

MR CUTTS: I do, your Honour. Two submissions. One – sorry that is for the LK. I don't have any submissions for the - - -

PN6

THE SENIOR DEPUTY PRESIDENT: I'm sorry. Yes, there was the XF. The position in respect to the XF - - -

PN7

MR CUTTS: Your Honour, I do have a few words to assist there.

PN8

THE SENIOR DEPUTY PRESIDENT: Yes. Go ahead.

PN9

MR CUTTS: If the Commission pleases. Thank you. Your Honour, we bring to you today an application for the termination of the designated award for the purposes of the certified agreement according to 170XF for the purpose of the no disadvantage test. The company has a warehousing function. That is the operational area where the future certified agreement will apply. Employees complete duties such as receiving, sorting, pack and dispatch, kitting and returns processing.

PN10

PeopleLogix is already - have registered individual agreements with employees with the underlying award as the Storage Services 1999 and we ask the Commission to make an order under 170XF for the Storage Services to be a designated award for the purpose of future PeopleLogix certified agreement. If the Commission pleases.

PN11

THE SENIOR DEPUTY PRESIDENT: Yes. Thank you for that. Yes I will deal with that matter first. This is an application pursuant to section 170XF of the Act for the termination of a designated award or awards for the purpose of the certification of a certified agreement. Application has been made in writing by the employer for such a designation.

PN12

I am satisfied having regard to the nature of work performed within the employer's enterprise that the Storage Service General Award 1999 is the appropriate award for the purpose of deciding whether the certified agreement passes the no disadvantage test. I will issue an instrument in writing to that effect designating that award. Thank you, Mr Cutts, we will move to the agreement.

PN13

MR CUTTS: Thank you, your Honour. This afternoon we are here again to certify an approved enterprise agreement under Division 2 section 170LK titled the PeopleLogix Warehouse Agreement 2005. The genesis for this agreement arises out of the wish to establish an agreement directly with employees in the PeopleLogix warehousing operations and logistics action to support future operations. The agreement was offered to employees on 9 December to all eligible employees employed at the time.

PN14

The remainder of the employees in PeopleLogix are covered by Australian Workplace Agreements, therefore we offered that to three employees, three casual employees, your Honour, I will explain that. The business is predominantly casual employees. They - - -

PN15

THE SENIOR DEPUTY PRESIDENT: I'm sorry, so there are only three employees in total covered by the agreement?

PN16

MR CUTTS: That's correct, your Honour.

PN17

THE SENIOR DEPUTY PRESIDENT: The statutory declaration - - -

PN18

MR CUTTS: The reason for that is the remainder of the work force are covered by Australian Workplace Agreements.

PN19

THE SENIOR DEPUTY PRESIDENT: Yes, the statutory declaration didn't deal with the total number so it is three casual employees, yes.

PN20

MR CUTTS: I will just try and explain that, your Honour.

PN21

THE SENIOR DEPUTY PRESIDENT: Yes.

PN22

MR CUTTS: We approached the employees with an agreement notifying them that the company wishes to make an agreement with them, that the agreement must be considered for a period of 14 days. That employees who belong to an organisation of employees may request that the organisation represent them and finally that the company will explain the terms and agreement to each. Your Honour, I have a copy of that document and I would like to submit that to the Commission.

PN23

THE SENIOR DEPUTY PRESIDENT: Yes. Thank you.

EXHIBIT #PL1 NOTICE TO EMPLOYEES

PN24

THE SENIOR DEPUTY PRESIDENT: And that is the notice given to employees of the intention to make an agreement. I note that it contains pretty much in the terms of the Act if not entirely in the terms of the Act the advice for the employees as to their representational rights.

PN25

MR CUTTS: Thank you, your Honour.

PN26

THE SENIOR DEPUTY PRESIDENT: Yes.

PN27

MR CUTTS: Your Honour, if I can also draw your attention to the bottom of that document where it can be seen an example of the formal voting slip used by the employees to approve the document.

PN28

THE SENIOR DEPUTY PRESIDENT: Yes.

PN29

MR CUTTS: Even though the employees voted on the approval of the document themselves, each employee did that in writing in a similar format to what you have in front of you today and Akash was nominated by the other employees to represent their interests to complete the document and to help proceedings today. After the period of 25 days all eligible employees voted in writing to accept the agreement. During the period of consideration all those eligible employees were consulted regarding the content of the agreement by the HR Manager on site and also Mr Andrew Turner who is here beside me, the warehouse manager and myself as the industrial relations consultant to the firm.

PN30

THE SENIOR DEPUTY PRESIDENT: Yes.

PN31

MR CUTTS: And we were able to answer any of their questions or concerns about that agreement. Sir I don't wish to waste your time today in going through the agreement piece by piece but if the Commission is satisfied then we ask - we request the Commission pursuant to 170LT to find that the agreement meets the no disadvantage test and all other conditions and be approved and certified. If the Commission pleases.

PN32

THE SENIOR DEPUTY PRESIDENT: Yes. I just had a couple of matters of clarification, Mr Cutts. The first is the hours provision. I note there 8.2 the agreement adopts the award span of ordinary hours, does it? There is no issue of disadvantage obviously there.

PN33

MR CUTTS: No.

PN34

THE SENIOR DEPUTY PRESIDENT: In 8.3 however it indicates - and here I am not certain of what the intent is. Well it records the recognition the different hours may apply. Is that intended to be within the terms of clause 8.2 within that award span of hours?

PN35

MR CUTTS: Yes your Honour.

PN36

THE SENIOR DEPUTY PRESIDENT: Yes. Very well. Thank you for that clarification. The second matter is in respect to clause 17, uniforms and protective clothing. That provides that the maintenance of laundering of uniforms is the responsibility of employee whereas the award I think provides that where an employee is required to wear any special uniform, dress or clothing it will be supplied and that is consistent with the position here whereby any such clothing will be provided.

PN37

MR CUTTS: Yes your Honour.

PN38

THE SENIOR DEPUTY PRESIDENT: But it also provides that it will be laundered by the employer. What is the position here? Is there a requirement to wear uniforms and what is the position in respect to laundering?

PN39

MR CUTTS: Yes your Honour - - -

PN40

MR TURNER: Sorry your Honour - - -

PN41

THE SENIOR DEPUTY PRESIDENT: Yes. Thank you.

PN42

MR TURNER: Sorry, your Honour.

PN43

THE SENIOR DEPUTY PRESIDENT: That's all right.

PN44

MR TURNER: As a safety requirement in the warehouse they are required to wear high visibility either vests or tops.

PN45

THE SENIOR DEPUTY PRESIDENT: Yes.

PN46

MR TURNER: Because they are working in the warehouse on a permanent nature we provide three polo neck shirts. It just makes it easier for the staff to wear and the casuals wear a high visibility vest. So it is providing a health and safety compliment.

PN47

THE SENIOR DEPUTY PRESIDENT: And who is responsible for the laundering?

PN48

MR TURNER: The staff up until now have been laundering and we - as they -through fair wear and tear we replace them at company expense.

PN49

THE SENIOR DEPUTY PRESIDENT: Replace them. Yes. That would seem I suppose to represent what would be a minor ….. Is there anything in the agreement which provides a more beneficial term and condition than the award?

PN50

MR CUTTS: Your Honour, probably not directly as I see it. The rates of the employees would probably be slightly above but we haven't addressed the rates here today and - - -

PN51

THE SENIOR DEPUTY PRESIDENT: Well the agreement provides for the rates in accordance with – or classification within the award and entitlement to the award rate.

PN52

MR CUTTS: As a minimum, your Honour.

PN53

THE SENIOR DEPUTY PRESIDENT: As a minimum. Yes.

PN54

MR CUTTS: Your Honour I would be happy to address that in relation to the rate or to give a commitment against that.

PN55

THE SENIOR DEPUTY PRESIDENT: Yes. Very well. And what would be the nature of that? The commitment?

PN56

MR CUTTS: Your Honour, I think all its safety equipment or safety wear. We would be willing to commit to launder that equipment. In terms of uniforms on the shop I don't believe, unless I am instructed differently today that the employees are required to wear specific uniforms in the warehouse.

PN57

THE SENIOR DEPUTY PRESIDENT: Very well. So - - -

PN58

MR CUTTS: Or on site. So in terms of their safety vests I think was what Mr Andrew Turner was referring to, they are for the care of the company and will continue to be. If employees in the future, your Honour, are required to wear specific uniforms as outlined in the award, then the company will meet - endeavour to make sure they are fairly compensated by the award.

PN59

THE SENIOR DEPUTY PRESIDENT: Thanks. Thank you for that. Now one other matter which I am not clear on and I don't think it matters for the purpose of certification but it may matter in the future if there is ever a dispute to avoid an argument between the parties as to what the effect of the disputes procedure is. Clause 3, part 3 of clause 21 if the matter is not resolved the matter may be referred to the Commission in accordance with the Workplace Relations Act.

PN60

Is there any joint view of the parties as to what that means? Conciliation or conciliation and arbitration or conciliation and arbitration if there is agreement of the parties and I am not suggesting any one of them but simply seeking clarification of what is intended.

PN61

MR CUTTS: Your Honour, I think with all disputes the company would always prefer to conciliate first. Have a conciliation and if there is no resolution during conciliation then the company would most likely agree to arbitration. One that is used through the - using the resources of the Commission.

PN62

THE SENIOR DEPUTY PRESIDENT: Subject to the terms of the Act.

PN63

MR CUTTS: Subject to the terms of the Act.

PN64

THE SENIOR DEPUTY PRESIDENT: Yes. Very well. Is that your view on behalf of the employers Mr Singh?

PN65

MR SINGH: Akash.

PN66

THE SENIOR DEPUTY PRESIDENT: Yes.

PN67

MR SINGH: Yes.

PN68

THE SENIOR DEPUTY PRESIDENT: Very well. Sorry, you agree with what Mr Cutts has put?

PN69

MR SINGH: Yes.

PN70

THE SENIOR DEPUTY PRESIDENT: Thank you for that. Good. Thank you very much. Very well I don't have anything further for you. Nor indeed for you Mr Cutts. Very well this is an application for the certification pursuant to section 170LK of the Workplace Relations Act 1996 for certification of the PeopleLogix Warehouse Agreement 2005 – an agreement made between PeopleLogix Pty Ltd and its three casual employees.

PN71

On the basis of what has been put to me today, the content of the statutory declarations filed by Mr Singh and Ms Wodsworth and the terms of the agreement I am satisfied firstly that the agreement is an agreement about matters pertaining to the employment relationship within the meaning of section 170LI of the Act. I am satisfied subject to the undertaking given by Mr Cutts on transcript which will be recorded on file that certification of the agreement would not have the affect of disadvantaging employees covered by the agreement.

PN72

I am satisfied also that each of the other requirements of section 170LT of the Act is met and finally nothing arises from section 170LU of the Act which would prevent certification of the agreement. Accordingly in accordance with section 170LT of the Act and subject to the undertaking on behalf of the company on transcript I now certify the agreement. The agreement shall come into force from 2 February 2006. It shall remain in force until 31 July 2006. A copy of the agreement will be provided in due course to the parties in the terms that I have just announced to them. I will now adjourn these proceedings.

<ADJOURNED INDEFINITELY [2.59PM]

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #PL1 NOTICE TO EMPLOYEES PN23