AG2008/1467, Transcript of Proceedings [2008] AIRCTrans 823 (18 December 2008)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 19517-1

SENIOR DEPUTY PRESIDENT LACY

AG2008/1467

cl.16A(1)(b) Sch.8 - Application to vary preserved collective State agreement by person bound

Application by Arakella Pty Ltd
(AG2008/1467)





Brisbane

11.10AM, FRIDAY, 5 DECEMBER 2008

PN1

MR G O'GORMAN: I appear on behalf of the National Union of Workers Industrial Union of Employees Queensland.

PN2

MS L BOWEN: I appear on behalf of Arakella trading as GNS.

PN3

THE SENIOR DEPUTY PRESIDENT: Mr O'Gorman, are you making application or it's the company that's making the application is it?

PN4

MR O'GORMAN: It is the company, your Honour.

PN5

THE SENIOR DEPUTY PRESIDENT: Yes. Well, do you want to tell me what it's all about, Ms Bowen?

PN6

MS BOWEN: We seek amendment to the previously described sick leave to be called personal leave and to include 10 days as the period of leave granted.

PN7

THE SENIOR DEPUTY PRESIDENT: Yes, there are a number of other variations apart from that though aren't there, fairly extensively varied from what I can see? Perhaps I'll hear from Mr O'Gorman.

PN8

MS BOWEN: Yes, thank you.

PN9

MR O'GORMAN: If it pleases the Commission, there are quite a fair few changes. As your associate stated we are seeking a variation of the 2005 agreement. There are many changes and I'll quickly go through them. The parties bound has changed, the address of the applicant - - -

PN10

THE SENIOR DEPUTY PRESIDENT: Sorry, when you say the parties bound what are the changes there?

PN11

MR O'GORMAN: I should rephrase that, your Honour. The company and the union are still the same company and the same union, there has been no change of coverage, however in the 2005 agreement it lists the address of the company as being both in Zillmere where it is currently but also at another address I believe in Banyo. The address in Banyo no longer exists and so that has been updated within the clause of parties bound. The next stage is the date and period of operation. The agreement has been - we are seeking for it to be varied for two years up to and including 1 September 2010, that is in clause 1.3. The grievance procedure and dispute procedure has also changed, your Honour, we are seeking to amend that.

PN12

Wage increases in 2.2 has also changed. We are seeking I believe a 4 per cent pay rise which is also implemented and represented throughout the allowances on site. The hours of work is also seeking to be varied specifically with reference to rostered days off. Schedule A and B in relation to wage has also been updated. I believe that is all that is included in the statutory declaration that was provided to the Commission, however the parties have both agreed for sick leave to be varied. The previous agreement 2005, which I do have a hard copy of if your Honour wishes it to be provided, lists sick leave as sick leave. We have changed it to update with the legislative provisions for it to be called personal leave and also to allow it to be 10 days personal leave per year in accordance with the Act.

PN13

THE SENIOR DEPUTY PRESIDENT: Not all those changes appear in the draft order do they?

PN14

MR O'GORMAN: They should, your Honour, all except for sick leave because it was advised that the sick leave change, which is clause 8 if my memory serves, was not in the statutory declaration so it was not included within the draft order, but the draft order should list all of those changes.

PN15

THE SENIOR DEPUTY PRESIDENT: If you just sit down for a while I'll just check some things. Yes, there are a couple of matters that I have some difficulty with. First of all, in the title of the agreement it was called, as I understand it, the Group Newsagency Supplies Arakella Pty Ltd trading as Brisbane Branch Certified Agreement 2005, is that right?

PN16

MR O'GORMAN: It is, your Honour.

PN17

THE SENIOR DEPUTY PRESIDENT: But you seek to change that to make that 2008 to 2010?

PN18

MR O'GORMAN: Yes, although I am aware of your decision with regards to Mobil v NUW and I'm aware that you don't necessarily have the power to make that order, however there was a lot of confusion with our organising with the company in trying to explain that, but we are aware of your decision.

PN19

THE SENIOR DEPUTY PRESIDENT: Well, I'm not prepared of course to approve the change in the name for the reason that I've given in my other decision, namely that to change the name changes the nature of the agreement, it's a new agreement. Similarly in clause 1.3 where you said to change the agreement to operate from 1 September 2008, the agreement operated from 1 September 2005 and will always operate from that date. The varied agreement will operate from the date of the order, but that's actually expressed in the order itself, not in the agreement. So again I will not approve the change in the 1 September 2008. That will be 1 September 2005 as it was.

PN20

MR O'GORMAN: We understand that, your Honour.

PN21

THE SENIOR DEPUTY PRESIDENT: And remain in force for a period of two years from the date of the order. You've got to 1 September 2010. Well, clearly that will be expressed as two years from the date of the order, whatever that date might be.

PN22

MR O'GORMAN: Yes.

PN23

THE SENIOR DEPUTY PRESIDENT: Unless you wanted it to run until 1 September 2010. Is that what you - - -

PN24

MR O'GORMAN: I believe that would be preferable, your Honour.

PN25

THE SENIOR DEPUTY PRESIDENT: Yes, all right. That of course won't be two years now.

PN26

MR O'GORMAN: No, it will be a shorter time than that.

PN27

THE SENIOR DEPUTY PRESIDENT: Yes. Of course you can, as you have done in clause 2.2, make arrangements as you have done. The wages increase will apply from the first pay period on or after 1 September 2008, so that's fine. Now, the other thing, I don't have a copy of the agreement, the original agreement. You have provided me with a marked up version of the original agreement which shows the changes that have been made, and I thank you for that, but I would like to have also a copy of the original agreement in its original form.

PN28

MR O'GORMAN: Would you like it? We do have a hard copy with us, your Honour, if you would like that.

PN29

THE SENIOR DEPUTY PRESIDENT: That would be fine, yes, thank you. Now, what about all the necessary documentation? You have an application?

PN30

MR O'GORMAN: Yes.

PN31

THE SENIOR DEPUTY PRESIDENT: Do you have set out in the application the changes that you propose?

PN32

MR O'GORMAN: We have, your Honour.

PN33

THE SENIOR DEPUTY PRESIDENT: And you have provided an application for extension.

PN34

MR O'GORMAN: Yes.

PN35

THE SENIOR DEPUTY PRESIDENT: That's fine. You have provided an application for variation, there's a separate form, that's okay. By the way just for the future, you can do that in one form.

PN36

MR O'GORMAN: Thank you very much.

PN37

THE SENIOR DEPUTY PRESIDENT: And you've provided me with a statutory declaration about the approval process, genuinely approved by a valid majority of employees. How many employees are actually covered by the agreement?

PN38

MR O'GORMAN: I believe approximately around 50. More like 65, your Honour.

PN39

THE SENIOR DEPUTY PRESIDENT: Fifty five or 65?

PN40

MR O'GORMAN: Sixty five.

PN41

THE SENIOR DEPUTY PRESIDENT: And how many participated in the ballot?

PN42

MR O'GORMAN: The majority, your Honour. I'll let the company speak to that as I wasn't there.

PN43

THE SENIOR DEPUTY PRESIDENT: Yes. How many people took part in the vote?

PN44

MS BOWEN: There were only about six who were absent at the time.

PN45

THE SENIOR DEPUTY PRESIDENT: Why were they absent?

PN46

MS BOWEN: Various and leave periods.

PN47

THE SENIOR DEPUTY PRESIDENT: And how many people voted in favour of it?

PN48

MS BOWEN: I don't have those figures, sir.

PN49

THE SENIOR DEPUTY PRESIDENT: Sorry?

PN50

MS BOWEN: I don't have that information.

PN51

THE SENIOR DEPUTY PRESIDENT: Did anyone vote against it?

PN52

MS BOWEN: Not that I'm aware of. I as management did not attend the meeting.

PN53

THE SENIOR DEPUTY PRESIDENT: Who did attend the meeting, do you know?

PN54

MR O'GORMAN: It is my understanding that the union organiser, a Mr Russell Veritz attended the meeting, and I do recall that he stated to me that it was a vast majority, around 90 per cent, your Honour.

PN55

THE SENIOR DEPUTY PRESIDENT: Who is Geoff Sugden?

PN56

MS BOWEN: Geoff Sugden is the Queensland manager.

PN57

THE SENIOR DEPUTY PRESIDENT: Who is John Ferguson?

PN58

MS BOWEN: I'm sorry, I don't know who John Ferguson is.

PN59

THE SENIOR DEPUTY PRESIDENT: It looks like Ferguson, signed on behalf of the National Union of Workers.

PN60

MR O'GORMAN: John Cosgrove, your Honour, it could be.

PN61

THE SENIOR DEPUTY PRESIDENT: Yes, it could be.

PN62

MR O'GORMAN: He is our branch secretary.

PN63

THE SENIOR DEPUTY PRESIDENT: It could be Cosgrove. All right, so you will provide me with a hard copy of the original agreement, is that right?

PN64

MR O'GORMAN: Yes, your Honour, and I believe that your associate has given that to you.

PN65

THE SENIOR DEPUTY PRESIDENT: Yes, thank you. And I presume now then if I simply turn off the track changes on the document that you've provided electronically that will provide me with a clear copy or a clean copy of the agreement as varied and extended?

PN66

MR O'GORMAN: Yes, your Honour.

PN67

THE SENIOR DEPUTY PRESIDENT: Save for the matters that I said that I wouldn't approve, which we can change anyway.

PN68

MR O'GORMAN: And we also have a hard copy of the clean copy of this proposed agreement as well as your copy of that.

PN69

THE SENIOR DEPUTY PRESIDENT: Yes, if you could provide that to us. And could you send that to us in Word form as well just to be sure that we've got the same document?

PN70

MR O'GORMAN: I can do that.

PN71

THE SENIOR DEPUTY PRESIDENT: Do any of the statutory declarations actually tell me that there is no diminution of benefits or disadvantage?

PN72

MR O'GORMAN: I am not aware if that is in the statutory declaration, your Honour, but it would be my submission that there isn't a disadvantage, but I do not believe that it is in the statutory declaration.

PN73

THE SENIOR DEPUTY PRESIDENT: And it wouldn't result on balance in a reduction in the overall terms and conditions of employment?

PN74

MR O'GORMAN: No, it wouldn't, your Honour. There is a pay increase of 4 per cent and all the other entitlements have been enhanced.

PN75

THE SENIOR DEPUTY PRESIDENT: And that would make it better than the award that it would be tested against would it?

PN76

MR O'GORMAN: Yes, your Honour.

PN77

THE SENIOR DEPUTY PRESIDENT: Which award is that?

PN78

MR O'GORMAN: I believe it is the General Stores and Warehousing Distribution Award.

PN79

THE SENIOR DEPUTY PRESIDENT: All right. Now, there is no application before the Workplace Authority to have an agreement certified or approved by them at all?

PN80

MR O'GORMAN: No, your Honour.

PN81

THE SENIOR DEPUTY PRESIDENT: No, all right. Well, I'm satisfied that the requirements of clause 16(1) of schedule 8, Division 3, have been satisfied and I'll make the order in terms of the draft order subject to those variations that I have indicated in relation to the name of the agreement and the start date of the agreement to come into effect on the first pay period on or after today's date.

PN82

MR O'GORMAN: Thank you, your Honour.

PN83

THE SENIOR DEPUTY PRESIDENT: Anything else?

PN84

MR O'GORMAN: No, your Honour.

PN85

THE SENIOR DEPUTY PRESIDENT: Anything else, Ms Bowen?

PN86

MS BOWEN: No, thank you.

PN87

THE SENIOR DEPUTY PRESIDENT: Thank you for your attendance, enjoy the rest of your day.

<ADJOURNED INDEFINITELY [11.33AM]