AG2006/2341, Transcript of Proceedings [2006] AIRCTrans 494 (30 March 2006)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 14558-1

DEPUTY PRESIDENT HAMPTON

AG2006/2341

APPLICATION BY HARDY WINE COMPANY LIMITED
s.170LK - Agreement with employees (Division 2)
(AG2006/2341)

ADELAIDE

10.24AM, THURSDAY, 16 MARCH 2006

THE FOLLOWING PROCEEDINGS WERE CONDUCTED VIA TELEPHONE CONFERENCE AND RECORDED IN ADELAIDE

PN1

THE DEPUTY PRESIDENT: Yes good morning Mr Sprague.

PN2

MR SPRAGUE: Good morning.

PN3

MR R CAIRNEY: I am from the South Australian Employers Chamber of Commerce & Industry Incorporated trading as Business SA. With me today sir, from the company, I have MR F HULSHOF and MR M RULE.

PN4

THE DEPUTY PRESIDENT: Mr Sprague, in due course I will be just giving you an opportunity to say anything that you wish to and hopefully you can hear us all right.

PN5

MR SPRAGUE: Yes it's not too bad. A bit low, but yes, we are going all right here.

PN6

THE DEPUTY PRESIDENT: We'll do our best without shouting.

PN7

MR SPRAGUE: Yes no worries.

PN8

THE DEPUTY PRESIDENT: All right. Good. Yes Mr Cairney?

PN9

MR CAIRNEY: Thank you Deputy President. I will be brief with my submissions, suffice to say that this is an application pursuant to Division 2 of the Workplace Relations Act for certification of a section 170LK agreement. And in fact, the parties would submit to you that the agreement complies with all the requirements of the Act. We would seek by way of a verbal application pursuant to section 170XF of the Act.

PN10

You will note, Deputy President, that in the agreement itself, there is a reference to the Wine & Spirit Industry SA Award which is obviously a State award not Federal, and therefore, pursuant to section 170XF, we would be seeking that the Commission determine that the Safety Net Award is in fact the Wine Industry AWU Award 1999, which is an award of the Australian Industrial Relations Commission for the purposes of certification of this agreement.

PN11

THE DEPUTY PRESIDENT: Mr Cairney, would that award be binding in any event in relation to Victorian business operations?

PN12

MR CAIRNEY: Yes it – in my view it would be because it clearly has the capacity to and I believe that - there might be some issue of respondency however, because I am not sure if Hardy Wine company is respondent or whether it is just the Stanley Wine company. Certainly the Stanley Wine company was - is listed as a respondent now there however is a specific site which is Baronga in New South Wales, so there might be some doubt about whether or not the award binds the whole company or whether it only binds a section.

PN13

Notwithstanding, whichever is the case, clearly we would say even if it is not actually binding by way of respondency, then it clearly has the coverage in terms of the safety net.

PN14

THE DEPUTY PRESIDENT: Yes it is the appropriate safety net award.

PN15

MR CAIRNEY: Yes. Indeed.

PN16

THE DEPUTY PRESIDENT: Very well then. What I will do is I will treat that as an application as a matter of abundant caution.

PN17

MR CAIRNEY: Yes.

PN18

THE DEPUTY PRESIDENT: Under section 170XF.

PN19

MR CAIRNEY: Yes.

PN20

THE DEPUTY PRESIDENT: And nominate the 1999 Federal Award for the purposes of the safety net and indicate that I am prepared to grant that application.

PN21

MR CAIRNEY: Yes.

PN22

THE DEPUTY PRESIDENT: And deal with it on that basis.

PN23

MR CAIRNEY: Thank you. Again just for the record, as you will note from clause 7 of the application or the agreement itself, certification of this agreement would seek to supersede the current 2002/2005 agreement which, when that was certified in July 2003 the Wine Industry AWU Award 1999 was the award used for the purpose of the safety net.

PN24

THE DEPUTY PRESIDENT: Yes.

PN25

MR CAIRNEY: Date and period of operation, obviously if the agreement is certified today it would operate from today. The parties would seek that it remains in force until 30 November 2008. However you will note from Appendix B of the agreement that there are three incremental wage increases, the first one being operative December 05. As I understand it that increase has been paid and in fact as I understand, although the Appendix B indicates December 05, December 06, December 07, the actual date is 1 December in each of those years from which the - in fact clause 22, page 10 clarifies that.

PN26

THE DEPUTY PRESIDENT: Yes. Quite so.

PN27

MR CAIRNEY: By actually indicating the appropriate date. So clearly there are some matters in the agreement which although not yet certified have been put into effect by agreement between the parties. In addition, Deputy President, the employer advised the employees by way of a notice that they intended to negotiate a new agreement and in that notice as I understand it the employees were advised of their rights to representation should they so desire. I have nothing further at this juncture unless you have any questions.

PN28

THE DEPUTY PRESIDENT: Good. Thank you, Mr Cairney. Mr Sprague, on behalf of yourself and your colleagues is there anything you wanted to say either about the process leading to the agreement or about the agreement itself?

PN29

MR SPRAGUE: No. I think we are all pretty right with it.

PN30

THE DEPUTY PRESIDENT: All right. Now I take it that you confirm as Mr Cairney has indicated, that during the course or the commencement of the process, you were advised that if you and your colleagues wished to be represented by a union or an employee association that you had that right?

PN31

MR SPRAGUE: Yes we were.

PN32

THE DEPUTY PRESIDENT: All right. Very well. All right. Thank you. Anything further on this end?

PN33

MR CAIRNEY: Just for the record the company would express its appreciation to Ian and his colleagues in co-operatively reaching a new agreement.

PN34

MR HULSHOF: I would like to second that Ian to you and thanks for the healthy debates and discussions and that we reached agreement at such a short period of time.

PN35

MR SPRAGUE: No worries.

PN36

THE DEPUTY PRESIDENT: Very well. Look I will deal with the application now. Firstly I confirm that I have nominated the Wine Industry AWU Award 1999 being an award of the Australian Commission pursuant to section 170XF of the Act for the purposes of the no disadvantage test, and in so doing I shouldn't be taken to have made a ruling one way or the other as to whether or not that award would otherwise apply. I do that as a matter of caution and I appreciate Mr Cairney that is the constructive way of putting the issue beyond doubt.

PN37

In that context I also note and would treat what has been said as a verbal application to amend the statutory declarations to nominate that award in the respective answers to 6.1 in each statutory declaration. As to the certification requirements under the Act I accept that a valid majority of employees have given genuine consent to the agreement following a process set out in the Act.

PN38

In terms of the agreement itself I have considered the terms of the agreement in conjunction with the Wine & Spirit Industry SA Award in comparison with the relevant Australian Commission Safety Net Award and I am satisfied that the agreement clearly meets the no disadvantage test. As with its predecessor in my view it remains a beneficial and comprehensive package which requires and commends itself for endorsement by the Commission. In those circumstances the Commission does hereby certify this agreement pursuant to the Workplace Relations Act 1996 and I so order.

PN39

The agreement will come into force on and from today's date and will have a nominal life extending to 30 November 2008. In that respect as with the other agreements I have dealt with this morning, I do note the retrospective commitments in respect of the first salary, wages and salary adjustment. That can now take effect consequent upon the Commission's certification of the agreement.

PN40

A certified copy of the instrument will be supplied to all parties for your own use and records and lastly, I do note that this agreement is a ….. agreement in a relatively long line of collective agreements which have been negotiated between this company and its various employees in various respects. I have every confidence the agreement will stand the company and the vineyard employees in Victoria in good stead and I wish you all the best for the future.

<ADJOURNED INDEFINITELY [10.32AM]