AG2008/1367, Transcript of Proceedings [2008] AIRCTrans 705 (6 November 2008)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 19254-1

SENIOR DEPUTY PRESIDENT RICHARDS

AG2008/1367

cl.2A(1)(b) Sch. 7 - Application for an order to vary pre-reform certified agreement

Application by Golden Circle Limited
(AG2008/1367)
Golden Circle Limited Tourist Facility - Northgate Certified Agreement 2005

(ODN AG2005/7258)
[AG845521 Print PR966794]]




Brisbane

2.06PM, TUESDAY, 28 OCTOBER 2008

PN1

THE SENIOR DEPUTY PRESIDENT: If I could just take some appearances from the applicant. If you could just provide me with your name and your position with the company.

PN2

MS L. ELKS: My name is Louise Elks and I'm the HR manager of Golden Circle.

PN3

THE SENIOR DEPUTY PRESIDENT: Thank you Ms Elks, and I have on the telephone the employee representative, is that correct?

PN4

MS DINGLE: That's correct.

PN5

THE SENIOR DEPUTY PRESIDENT: Your name is?

PN6

MS K. DINGLE: Kay Dingle.

PN7

THE SENIOR DEPUTY PRESIDENT: Ms Dingle, can you just establish for me how is it you came to be the employee representative, was that an elected position or was it some nomination process?

PN8

MS DINGLE: Yes, we had a vote here on who we chose. We had three people, there was myself, Jane and Myra. I just happened to be here that day to sign for the EBA as Jane and Myra weren't available.

PN9

THE SENIOR DEPUTY PRESIDENT: So you are a duly elected employee representative for the purposes of the discussions, negotiations and the conduct of the ballot in respect of the variation and extension of the Golden Circle Ltd Tourist Facility Northgate Certified Agreement 2005, is that right?

PN10

MS DINGLE: That's correct.

PN11

THE SENIOR DEPUTY PRESIDENT: Good, thank you. Having established that, the application I have before me is under rule 55 of form 49A seeking to vary the Golden Circle Ltd Tourist Facility Northgate Certified Agreement 2005.
Rule 55, and by way of form 49A, is an application to vary the set agreement. The rules also provide by way of rule 55A through form 49B an avenue for extending the nominal expiry date of the agreement. In this application there is no form 49B, though it's quite readily assumed or inferred that that is the intention, that is to vary the nominal expiry date, is that right Ms Elks?

PN12

MS ELKS: Yes, that's correct your Honour.

PN13

THE SENIOR DEPUTY PRESIDENT: So there is no form 49B seeking the extension of the nominal expiry date by way of rule 55A, nonetheless it's evidence as I said that such an extension to the nominal expiry date is sought and in fact is evident in the schedule of variations and the consolidated varied agreement at clause 5 of that agreement. For that reason I will exercise my discretion under rule 6 of the Commission's rules to forego the requirements of the Commission's rules in respect of any obligation that might exist to utilise form 49B for the purposes of applying and seeking the extension of the nominal expiry date.

PN14

Paragraph 2A of part 2 of schedule 7 of the Workplace Relations Act requires me to determine whether or not the application is by a person bound by the pre-reform certified agreement. In this case the company has been a party to that agreement and is the applicant in this particular context, so the requirements of paragraph 2A(1) and part 2 of schedule 7 are met. Paragraph 2A(2)(a) and paragraph 2A(4) requires me to determine whether all the parties who are bound by the pre-reform certified agreement genuinely agree to the variations and the extension of the nominal expiry date of the agreement as described.

PN15

I have a statutory declaration signed by Ms Elks and dated 14 October 2008 in which Ms Elks attests to the genuine agreement of the employees in that there was, I think if I recall, a valid majority vote in that regard, is that right Ms Elks?

PN16

MS ELKS: That's correct, your Honour.

PN17

THE SENIOR DEPUTY PRESIDENT: Ms Dingle, as the employee representative are you able also to attest to whether or not there was genuine agreement to the variations and the extension of the nominal expiry date as sought, that is are you able to confirm that the employees had knowledge of information about the variations as sought, including the extended nominal expiry date to the agreement, but they had a reasonable time to inform themselves, to ask questions, to ingest the implications and subsequently conducted a ballot in which the valid majority of employees approved the variations of the extension of the nominal expiry date; is that your experience?

PN18

MS DINGLE: Yes, sir, that's correct, we all did.

PN19

THE SENIOR DEPUTY PRESIDENT: Do you have recall of the extent - more out of curiosity - I take it then it was agreed that there was a valid majority of employees in support of - - -

PN20

MS DINGLE: Yes, there was, the ballot was - the majority was all yes's and there was only the one no.

PN21

THE SENIOR DEPUTY PRESIDENT: Good, thank you. I presume there were more than two people?

PN22

MS ELKS: That's correct your Honour.

PN23

MS DINGLE: There's more than two employees, yes sir.

PN24

THE SENIOR DEPUTY PRESIDENT: Does anyone know what the total number is incidentally?

PN25

MS ELKS: I believe it's approximately 15, your Honour.

PN26

THE SENIOR DEPUTY PRESIDENT: Good, thank you. Paragraph 2A(2)(b) (i) and (ii) requires me to determine whether or not the parties have since the - what is defined as the introduction, being 13 February 2008, organised or threatened to engage in any industrial action in relation to the agreement or otherwise sought for a protection action ballot in relation to the proposed agreement under section 451 of the Workplace Relations Act. I have a written statement signed by Ms Elks and Ms Dingle, both signed on 14 October 2008 stating that neither the company, but in particular the employees, have taken any industrial action nor sought a protected action ballot under section 451 of the Act. I need to further determine for reasons of paragraph 2A(2)(c)(i) and (ii) whether the variation as proposed would result on balance in a reduction of the overall terms and conditions of the employees bound by the agreement under any transitional award or law of the Commonwealth or State. Ms Elks' statutory declaration of 14 October asserts to her knowledge that there is no such reduction in the terms and conditions of employment. Ms Dingle, is that your experience?

PN27

MS DINGLE: Yes, sir, I believe that sir.

PN28

THE SENIOR DEPUTY PRESIDENT: I note in the schedule of variations as submitted for the purposes of assistance in the creation of the order, in the issuance of the order that there have been a number of variations in various conditions, but I suppose the more substantive one is that the agreement provides for a new wage increase over the period at least to 2010. I am just looking at the variation at the moment to clause 13.1. Yes, the agreement has effectively created a new escalation regime for wage increases. Those wage increases have moved from an annual increase of 3.5 per cent over the previous agreement to annual increases of four per cent under the proposed varied agreement, is that right
Ms Elks?

PN29

MS DINGLE: That's correct.

PN30

MS ELKS: Sorry, yes so for 2008/2009 it's a four per cent increase and for 2010 it remains at the 3.5 per cent increase.

PN31

THE SENIOR DEPUTY PRESIDENT: One of the variations that you have sought, and I simply just want to make sure everyone knows the implication of it. In the schedule of variations at paragraph 13 under the heading of the avoidance of industrial disputes. You have altered your dispute resolution clause. You have provided a more stepped grievance and dispute settlement procedure than the one that pre-existed, and I noticed, and I take no offence, you have removed the Australian Industrial Relations Commission from any role in that dispute avoidance procedure. Is that right?

PN32

MS ELKS: Yes, your Honour, this is an internal process that we utilized first before we go externally.

PN33

THE SENIOR DEPUTY PRESIDENT: All that was in my mind is that I noticed at the end of step three the matter escalates into what is called the management hierarchy but there is then no procedure for bringing the issue to finality at all.

PN34

MS ELKS: This was as snapshot in terms of our internal policy. I suppose in terms of we try and resolve it in-house first, so we go through the hierarchy if you say that, obviously at any time they do have the ability to go externally, but we try and seek internal resolution before they go externally your Honour.

PN35

THE SENIOR DEPUTY PRESIDENT: There is no obligation to go externally at this stage is there?

PN36

MS ELKS: No, there's not sir.

PN37

THE SENIOR DEPUTY PRESIDENT: So if a dispute occurs and the employer is reluctant to bring it to finality then there is no machinery for bringing it to finality, is there?

PN38

MS ELKS: I suppose they have got external resources that they can use, et cetera. This is purely I suppose an effort to resolve things internally in a broader policy, I suppose it's longer than that, it goes through the different hierarchy, it can go up to the CEO but at any point it is also stated they can go externally for a resolution.

PN39

THE SENIOR DEPUTY PRESIDENT: That's in a company procedure?

PN40

MS ELKS: That's correct yes. I suppose we didn't want to put a huge, lengthy clause in there. I mean we've already got an external procedure that covers that.

PN41

THE SENIOR DEPUTY PRESIDENT: What does that mean, what is the external procedure, it's again out of curiosity.

PN42

MS ELKS: Sorry, so an external procedure to the EBA, so we've got a policy at Golden Circle on how to handle just I suppose the grievances and this is a snapshot in terms of what's in other collective agreements that we have. So to enable consistency we have replaced what was in the previous agreement with this clause here and we also have earlier a policy that says as here we go through area leader, supervisor, up until it gets to CEO but any time they can also go externally and we offer that, I suppose, that support in terms of recommending who they can go to if it's not finalized in house.

PN43

THE SENIOR DEPUTY PRESIDENT: Ms Dingle, the employees, I presume, were aware of this change in the - I presume from your previous evidence of course that the employees generally approved the variations, I presume your experience is that there was awareness of this particular variation and it's implication?

PN44

MS DINGLE: Yes, sir, we are all aware of that.

PN45

THE SENIOR DEPUTY PRESIDENT: The employees are nonetheless generally approved?

PN46

MS DINGLE: Yes, sir, very happy with the EBA.

PN47

THE SENIOR DEPUTY PRESIDENT: Paragraph 2A(3) requires that - sorry, I should first of all say on my examination of the schedule of variations - I will just say one thing. As I read the schedule of variations there are the odd typographical errors in the variation. Is that because - I presume the schedule of variations is a cut and paste from the consolidated agreement is it?

PN48

MS ELKS: The majority of it is your Honour.

PN49

THE SENIOR DEPUTY PRESIDENT: There's some rewriting is there?

PN50

MS ELKS: Yes, that's correct your Honour.

PN51

THE SENIOR DEPUTY PRESIDENT: There's still the same words - - -

PN52

MS ELKS: That's correct your Honour, yes.

PN53

THE SENIOR DEPUTY PRESIDENT: Where it hasn't been cut and pasted it's been copy typed in effect?

PN54

MS ELKS: Yes, that's correct.

PN55

THE SENIOR DEPUTY PRESIDENT: So it's still an accurate - I haven't cross-checked the paragraphs in the schedule of variations with the agreement in all cases, but nonetheless you say they're an accurate reflection of the formal terms of the consolidated version?

PN56

MS ELKS: That's correct.

PN57

THE SENIOR DEPUTY PRESIDENT: For the purposes of paragraph 2A(2)(c) (I) and (ii), I am satisfied that the variation as sought will not result on balance in the reduction of the overall terms and conditions of the employees to be bound by the agreement. For the purposes of paragraph 2A(3) of part 2 of schedule 7 of the Act, I need to be satisfied that the amended normal expiry date as sought for the pre-reformed certified agreement is not more than three years after the date on which an order I might make is made. I notice in relation to clause 5 of the consolidated agreement that the nominal expiry date that is sought is
21 November 2011, which puts it beyond the - the nominal expiry date is beyond the date on which the Act permits me to order the extension of the nominal expiry date. That is not fatal to the application at all, but it does mean that I am unable to issue an order in relation to this matter until this time.

PN58

MS ELKS: All right.

PN59

THE SENIOR DEPUTY PRESIDENT: I would need to for today's purposes indicate that I approve the variations but I cannot issue the order giving effect to those variations, nor to the new nominal expiry date of the certified agreement until 22 November 2008, that is because to do so would be to contravene paragraph 2A(3) of part 2 of schedule 7.

PN60

MS ELKS: Yes, your Honour.

PN61

THE SENIOR DEPUTY PRESIDENT: Does that make sense? So I approve the variations as sought and I will issue the order giving effect to those variations, including the extended nominal expiry date on 22 November 2011, but not any earlier. That said, Ms Elks, is there anything else you need to add to me in relation to this application?

PN62

MS ELKS: No, that's all your Honour.

PN63

THE SENIOR DEPUTY PRESIDENT: Thank you. Ms Dingle, as the duly elected employee representative is there anything else you wish to add in relation to this application?

PN64

MS DINGLE: No thank you, sir.

PN65

THE SENIOR DEPUTY PRESIDENT: Thank you Ms Elks and Ms Dingle, we are adjourned.

PN66

MS ELKS: Thank you your Honour.

PN67

THE SENIOR DEPUTY PRESIDENT: Thank you.

<ADJOURNED ACCORDINGLY [2.23PM]