AG2009/1090, Transcript of Proceedings [2009] FWATrans 116 (3 March 2009)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 19854-1

SENIOR DEPUTY PRESIDENT ACTON

AG2009/1090

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

Eureka Operations Pty Ltd t/as Coles Express T/A Coles Myer Ltd
and
Shop, Distributive and Allied Employees Association
(AG2009/1090)
Eureka Operations Fuel and Convenience Team Member Agreement 2005

(ODN AG2005/7920)
[AG845284 Print PR966511]]




Melbourne

9.16AM, FRIDAY, 20 FEBRUARY 2009

PN1

MR R CLANCY: I appear for Eureka Operations trading as Coles Express and with me is MR R CHAPMAN the national human resources manager for Coles Express.

PN2

MR J RYAN: I appear for the SDA.

PN3

THE SENIOR DEPUTY PRESIDENT: Mr Clancy.

PN4

MR CLANCY: Your Honour this is an application to vary and extend a pre-reform certified agreement. Your Honour will have before you a copy of the statutory declaration of Mr Chapman which goes to the following matters that a valid majority of employees bound by the agreement genuinely agreed to the variation and extension and that it would not result on balance in the reduction of the overall terms and conditions of employment of the employees bound. There is also before the Commission a joint statement signed by both parties going to the matters around the non organisation if I can put it that way, of industrial action or no application for a secret ballot, and again attesting to the terms and conditions of the agreement. Your Honour you also have before you a draft order prepared which outlines the substance of the variations and there is a consolidate form of the agreement and I’m happy to take any questions your Honour has.

PN5

THE SENIOR DEPUTY PRESIDENT: Yes, would you take me through the changes Mr Clancy and the effect of them?

PN6

MR CLANCY: Yes, your Honour. If I can start then, if your Honour has before you the draft form of order I’ll work that through that.

PN7

THE SENIOR DEPUTY PRESIDENT: What I think is actually easier for me to look at is the marked up version which has got red marking on it and I’ve got also printed off a copy of the original agreement so.

PN8

MR CLANCY: I’ll take you through that from the top then your Honour.

PN9

THE SENIOR DEPUTY PRESIDENT: Yes.

PN10

MR CLANCY: The first change is a change to the table of contents, just the second change is some formatting in clause 1 parties to the agreement, there were a couple of references to agreement with small a, capital A. Similarly a full stop was added in clause 3.1.5 again in clause 3.1.12, a capital for the word agreement. The same in clause 4.2 and again a full stop in clause 4.2.5. In clause 5 the period of operation has been amended to reflect the new expiry date of 30 September 2011. In clause 6.1.1 again a capital letter for the word agreement.

PN11

In clause 8.1 the wage rates have increased in the case of permanent employees at a rate of 4 per cent per annum so 4 per cent from the date of variation and then subsequent wage increases on 1 October 2009 and 1 October 2010. In relation to the casual rate of pay there’s a table now at 8.1.3 of the agreement which indicates the various increases there for casual employees and the conditions around the payment of overtime and the rates of pay to apply.

PN12

THE SENIOR DEPUTY PRESIDENT: So what’s the increase for the casuals?

PN13

MR CLANCY: The first increase is in excess of 4 per cent it takes them up to the pay scale that applies to the award that underpins this agreement that came into effect on 1 October 2008. The subsequent pay increases from 1 October 2009 and 1 October 2010 are 4 per cent per annum pay increases.

PN14

THE SENIOR DEPUTY PRESIDENT: All right and the overtime the existing agreement doesn’t have overtime. What’s the effect of this overtime provision?

PN15

MR CLANCY: What we’ve done in this agreement your Honour is set out the overtime provisions in this clause 8.1.3. In the earlier agreement overtime was dealt with for all employees later in the agreement. The clause being in 10.3 what we’ve done is so that there’s clarity and it’s all in the one place for casuals, we’ve taken the casual positions and put them all in the table at 8.1.3.

PN16

THE SENIOR DEPUTY PRESIDENT: Whilst retaining 10.3?

PN17

MR CLANCY: Yes, 10.3 now is an overtime clause that will relate simply to permanent employees.

PN18

THE SENIOR DEPUTY PRESIDENT: So 10.3 now only relates to permanent, is the effect of this clause to delete any provisions for casuals that they had under 10.3?

PN19

MR CLANCY: No, your Honour it confirms your earnings.

PN20

THE SENIOR DEPUTY PRESIDENT: Right and the casual loading here is 25 is it?

PN21

MR CLANCY: I think it’s in excess of 25 per cent. This is a creature of the previous award. In fact the pay scale publication put out by the Workplace Authority indicates that the casual loading in these cases for example, for all states, except Queensland the award casual loading is in excess of 31 per cent.

PN22

THE SENIOR DEPUTY PRESIDENT: So what’s the casual loading here then?

PN23

MR CLANCY: It’s according to the pay scale 31.1235 per cent.

PN24

THE SENIOR DEPUTY PRESIDENT: So sorry that’s reflected in this agreement is it?

PN25

MR CLANCY: It is yes the rate of $20.84 reflects that, it’s inclusive.

PN26

THE SENIOR DEPUTY PRESIDENT: Now this overtime rate is I’ve just done a quick calculation of $11.82 and the $20.84 which is about 57 per cent which would suggest around about time and a half?

PN27

MR CLANCY: Yes.

PN28

THE SENIOR DEPUTY PRESIDENT: Is that for all hours of overtime?

PN29

MR CLANCY: Yes, it is and again that reflects the award conditions.

PN30

THE SENIOR DEPUTY PRESIDENT: Now 10.3 of the previous agreement had time and a half for the first three hours and double time thereafter.

PN31

MR CLANCY: Yes.

PN32

THE SENIOR DEPUTY PRESIDENT: So this is now for all hours for casuals.

PN33

MR CLANCY: Well the 2.3 of the original agreement that application was applicable to the permanent employees. The reason why it’s been set out here was to reflect the operation of the award in relation to casual employees.

PN34

THE SENIOR DEPUTY PRESIDENT: So I’m looking at 10.3 of the original agreement where do I see that it only applies to permanents?

PN35

MR CLANCY: Well your Honour the – it was a – goes back to the way in which the original agreement was put together. Throughout the negotiations for the original agreement it was originally going to be an agreement in and around permanent employees. The casual rates of pay were inserted into 8.1.3 at a late stage in the negotiations and from that some arrangements were made for the payment of overtime rates. They weren’t formalised in the agreement. What the variation seeks to do is to formalise the arrangements that have been existing for the term of the first agreement for casual employees. So what was being done was there was overtime payment in accordance with the award through the terms of the first agreement. What the parties have done with this round of negotiations is to have inserted those arrangements into the award in this clause 8.1.3.

PN36

THE SENIOR DEPUTY PRESIDENT: Mr Clancy have you got the current agreement?

PN37

MR CLANCY: Yes, I do.

PN38

THE SENIOR DEPUTY PRESIDENT: Can I take you to 10.3.

PN39

MR CLANCY: Yes.

PN40

THE SENIOR DEPUTY PRESIDENT: It talks about team member’s reasonable overtime, 10.3.2 be entitled to overtime where such work is authorised where they work in excess of – and (b) for example says:

PN41

48 hours per week for full time and casual team members.

PN42

MR CLANCY: Yes.

PN43

THE SENIOR DEPUTY PRESIDENT: So does (c), it seems to apply to casual team members 10.3 of the previous agreement.

PN44

MR CLANCY: Yes what has been done your Honour is to take those sub paragraphs and put them into clause 8.3. You’ll notice in 8.1.3 for example the second dot point there refers to when the overtime rate is applicable and that reflects the award condition. These are part of the – it’s a tidying up of the arrangements that were in force.

PN45

THE SENIOR DEPUTY PRESIDENT: No, I think you misunderstand me. 10.3.3 of the previous agreement says:

PN46

For all authorised overtime be paid at time and a half for the first three hours and double time thereafter.

PN47

So casuals under the current agreement are getting double time after three hours. It doesn’t seem to be reflected in the variation to 8.1.3.

PN48

MR CLANCY: Your Honour the position was during the term of the agreement that although 10.3 was drafted in that way the understanding between the parties as a result of the way in which the first agreement was negotiated, it wasn’t picked up in the drafting of it, but the practice that was adopted throughout reflected the award conditions whereby they would be paid the rate of pay that reflects the overtime component added on to the base rate that is now set out in 8.1.3.

PN49

THE SENIOR DEPUTY PRESIDENT: So are you telling me the award doesn’t provide for double time after three hours for casuals?

PN50

MR CLANCY: That’s correct your Honour.

PN51

THE SENIOR DEPUTY PRESIDENT: And they were applying the award provision rather than the agreement provision?

PN52

MR CLANCY: They were paying the award provision yes but it was in accordance with an understanding that the parties had reached. The agreement didn’t pick up that understanding with full - - -

PN53

THE SENIOR DEPUTY PRESIDENT: What do you say about that Mr Ryan?

PN54

MR RYAN: Your Honour what – I’m - - -

PN55

THE SENIOR DEPUTY PRESIDENT: The position is simply this. The agreement currently provides for double time, payment of overtime to casuals after the first three hours.

PN56

MR RYAN: Yes.

PN57

THE SENIOR DEPUTY PRESIDENT: The variation wouldn’t give them double time after three hours.

PN58

MR RYAN: Yes.

PN59

THE SENIOR DEPUTY PRESIDENT: It gives them in effect time and a half, all overtime.

PN60

MR RYAN: Yes.

PN61

THE SENIOR DEPUTY PRESIDENT: I’m told by Mr Clancy that notwithstanding the terms of the agreement it was agreed between the parties that they would apply the award provision which was time and a half for all overtime hours rather than the terms of the agreement.

PN62

MR RYAN: And I can’t add anything to that. I can’t clarify that or contradict it. I wasn’t actually – having been involved in the discussions on this matter but I have no reason to disbelieve anything that Mr Clancy says in relation to this. It’s one of the, I suppose, practical difficulties that arise sometimes with the way the agreements have been operating in practice. But I accept exactly what your Honour is saying, that the wording is exactly as your Honour says the wording is and the effect is as you’ve outlined.

PN63

THE SENIOR DEPUTY PRESIDENT: Thank you. What’s the proportion of casuals to permanent employees Mr Clancy?

PN64

MR CLANCY: When we commenced the negotiations the proportion was about 52 per cent permanent 48 per cent casual.

PN65

THE SENIOR DEPUTY PRESIDENT: So near enough to 50/50. How many employees are we talking about?

PN66

MR CLANCY: There’s 5000 employees approximately across approximately 630 sites.

PN67

THE SENIOR DEPUTY PRESIDENT: When you say you commenced negotiations, how long has this been going on?

PN68

MR CLANCY: It commenced in June last year and concluded at the end of November.

PN69

THE SENIOR DEPUTY PRESIDENT: Right and is there any reason to believe those proportions have changed significantly.

PN70

MR CLANCY: I could take some instructions, but I’m not - - -

PN71

THE SENIOR DEPUTY PRESIDENT: Yes, all right.

PN72

MR RYAN: Your Honour just on that the only point that I could add that might assist is that certainly from my understanding of this industry both across Coles Express and Woolworths operations is that the incidence of overtime amongst the casual employees is very, very low. That’s simply because of the rostering arrangements that you have to have your roster set out, so that if there’s going to be overtime, it’s often an overtime only to cover a short absence while someone else is bound to cover a longer shift. So it’s not like some areas where this would be a major issue where you’d be looking at an overtime shift that could be an eight hour shift. This would be overtime that on average would be very small amounts of time. So the possibility of a single casual working overtime on even an occasional basis, it’s going to be longer than three hours, would be very, very rare. It’s just that because of the rostering patterns across this industry.

PN73

THE SENIOR DEPUTY PRESIDENT: Thank you. Mr Clancy the next change.

PN74

MR CLANCY: The next change your Honour is to clause 8.2, junior team members. We sought to reformat that and set out the table there which shows the various rates of pay that apply to employees under the age of 20 and then also to clarify that the pay increase of the next rate of pay would be applicable from the pay period after their birth day. The next change is to clause 8.3.1 dealing with the payment of wages, the change reflects that the payment of wages will be within three working days following the end of the pay period except in the event of a public holiday falling which extends it out to four days.

PN75

Clause 8.4 reflects the increases in the various allowances that are contained therein because of the whole clause has been put in, but essentially the travel allowance rates have all increased. The meal allowance rate increased in accordance with the table there in 8.4.2 and we’ve reflected changes also to the Western Australian location allowances which are later attached to the back of the agreement. In the next change is to clause 9.1.2 in the categories of employment and it relates to part time employees. There’s a new arrangement for minimum hours to be worked by a part time employee it’s increased from six hours to 10 hours per week. But existing part time employees who might have a one six hour shift per week, can maintain that arrangement if they so wish.

PN76

THE SENIOR DEPUTY PRESIDENT: So for new employees after 13 December 2008 it’s a minimum of 10 hours is it?

PN77

MR CLANCY: 10 hours per week.

PN78

THE SENIOR DEPUTY PRESIDENT: That’s the only change?

PN79

MR CLANCY: Yes, your Honour.

PN80

THE SENIOR DEPUTY PRESIDENT: Yes, thank you.

PN81

MR CLANCY: In clause 9.6 this is a clause that dealt with various provisions relating to existing team members as at the time of the certification of the first agreement so this is a change as in – a change in form because the original agreement dealt with the date of certification to reflect this variation would change the date of certification wherever it’s referenced in that clause to 13 December 2005.

PN82

THE SENIOR DEPUTY PRESIDENT: So this is the area I had most difficulty understanding what the effect of this clause is.

PN83

MR CLANCY: Yes.

PN84

THE SENIOR DEPUTY PRESIDENT: What does it do?

PN85

MR CLANCY: Your Honour the clause had – as far as I’m aware the clause may well have done it’s work, there was some provisions just dealing with the ones in 9.6 essentially it sets up the following provisions and where there were any arrangements in place for employees who were engaged as at the time of the certification of this agreement they continue to apply now. The parties did in the negotiations tried to work out which saved provisions still had some work to do and in the end it became a matter of let’s just leave them in and let them continue to operate. So what the parties agreed to do was just change the dates. It may be that they’ve done their work but with the workforce being the size it was we weren’t prepared to risk cutting them out if they were still doing some.

PN86

THE SENIOR DEPUTY PRESIDENT: Well the effect originally presumably was that what you’ve got at the date of certification you keep?

PN87

MR CLANCY: Yes.

PN88

THE SENIOR DEPUTY PRESIDENT: But new employees operate under the terms of the agreement.

PN89

MR CLANCY: Yes.

PN90

THE SENIOR DEPUTY PRESIDENT: But now what we’ve done is change that to not only those prior to certification but also anybody else employed subsequently. Now that’s fine so long as the conditions they’re keeping were for those between certification and 13 December 2005 employed, the conditions they’re keeping are the ones under the agreement but if they’re not is this having retrospective effect to a new group of employees terms and conditions that existed only for the pre-certification employees?

PN91

MR CLANCY: No, I don’t think that is the effect, it’s certainly not the intention of the effect. For example, with the casuals there was the right that existed to remain a casual and that right for those employees who were engaged before 13 December 2005 continues. How many of those casuals are still in the business I’m not sure your Honour but in the event that there were, that was their right then and continues to be their.

PN92

THE SENIOR DEPUTY PRESIDENT: Right and so the issue I raise is that is pertinent. What you’re saying is that the right to remain a casual is there now some effect that you can be made a permanent rather than a casual?

PN93

MR CLANCY: There’s no positive clause in the agreement that would operate in that effect. Obviously as an employer we can’t force people to be permanent employees. The origin of that - - -

PN94

THE SENIOR DEPUTY PRESIDENT: Well you can can’t you?

PN95

MR CLANCY: Well.

PN96

THE SENIOR DEPUTY PRESIDENT: What you do is you don’t offer them any shifts.

PN97

MR CLANCY: Well your Honour I can’t speak to that but I – if you’re asking whether there is a compulsion to do that, there’s not. There are the terms and conditions that relate to both employees and historically with this agreement there was a determination by both parties to reduce the number of casuals employed and offer people either part time, or full time employment.

PN98

THE SENIOR DEPUTY PRESIDENT: So is there a practise of converting casuals to permanent employees?

PN99

MR CLANCY: There’s not a defined practice but from the business’s point of view and from the employee’s point of view in terms of continuity and career development and the opportunities of knowing when you’re going to be working each week and developing a consistent shift pattern there is obvious benefits in having people engaged on a permanent basis.

PN100

THE SENIOR DEPUTY PRESIDENT: Really?

PN101

MR CLANCY: Well particularly when you’ve got a 25/7 operation and there are shifts that appeal to people on either weekends or after hours or out of school hours. Now with these stores, you often only have one or two employees at a time, so continuity of employees is a desirable outcome for both parties.

PN102

THE SENIOR DEPUTY PRESIDENT: Can’t you get continuity by just engaging the casual every week, a Friday night and Saturday afternoon? The majority of people working in these areas are students aren’t they?

PN103

MR CLANCY: In metropolitan areas that may be the case, but in regional areas a lot of our staff are not students, there’s for example, there’ll be mothers who work hours in between school hours. We don’t have an – and in the remote areas, again the student population isn’t high.

PN104

THE SENIOR DEPUTY PRESIDENT: Is it cheaper to engage someone as a part timer or as a casual?

PN105

MR CLANCY: Well ultimately it would depend on the shift pattern.

PN106

THE SENIOR DEPUTY PRESIDENT: No, no just for any one point in time.

PN107

MR CLANCY: Well if you were saying for one hour of work obviously the casual loading, it becomes, the casual loading takes it above the permanent rate.

PN108

THE SENIOR DEPUTY PRESIDENT: Let’s take someone who is engaged Friday, what’s the minimum number of hours of shift?

PN109

MR CLANCY: Three hours.

PN110

THE SENIOR DEPUTY PRESIDENT: All right, three hours Friday and three hours Saturday. Is it cheaper to engage them as a casual or as a part timer?

PN111

MR CLANCY: It would depend on the spread of hours because for permanent employees there’s a range of penalties attached to the hours that they work. So for example if you were working on a say, after midnight on Friday through to midday on Saturday and you’re a permanent employee you would get a 30 per cent loading. If you were working on from midday Saturday to midnight Saturday you’d get 50 per cent loading.

PN112

THE SENIOR DEPUTY PRESIDENT: So if you’re working say from I don’t know, 4 o’clock on Friday afternoon to 7 o’clock on Friday night and then on Saturday you work from two in the afternoon to five.

PN113

MR CLANCY: Yes.

PN114

THE SENIOR DEPUTY PRESIDENT: What’s cheaper?

PN115

MR CLANCY: Well in relation to that Saturday shift for the permanent employee they’d get a 50 per cent loading. On the Friday it would be an ordinary time shift so on the Friday the casual rate would be more, but on the Saturday the permanent rate probably would be more.

PN116

THE SENIOR DEPUTY PRESIDENT: Yes, but what about you know sick leave, annual leave et cetera?

PN117

MR CLANCY: Well the normal conditions that attach to casual employee would prevail.

PN118

THE SENIOR DEPUTY PRESIDENT: Look I can understand the terms of the agreement in that sense about what penalties apply but I’m actually asking a practical question whether it’s cheaper for the employer to engage people as part timers than casuals? Because on the face of it, it would be if there’s this provision about new employees effectively don’t have that right to remain as casuals.

PN119

MR CLANCY: Yes your Honour I can only take you to the substance of discussions during negotiations where the parties discussed the issue of the employment categories within the business and one of the things with which the company was that we should be increasing the rate of permanent employment within the business.

PN120

THE SENIOR DEPUTY PRESIDENT: Perhaps I should ask Mr Ryan about that, when he stands up. So the effect of this clause is to retain for employees engaged prior to December on the date therein, some arrangements the terms of which we’re not sure.

PN121

MR CLANCY: Your Honour not being engaged by the company at the time of the first agreement I can’t comment with authority about why that clause was in the agreement when certified, except to say - - -

PN122

THE SENIOR DEPUTY PRESIDENT: You’ve got Mr Chapman there, was he engaged at the time? Well you know like how can I be satisfied then that the new employees there is not some detriment in this variation?

PN123

MR CLANCY: Well your Honour the situation will be that where when stores are operating there will be a range of shifts offered and a range of shifts to be filled. Now as an employer in terms of continuity of service and consistency of service and giving people certainty as to their working arrangements there will be a desire to set up as settled, the shift – the roster pattern as possible, but there are always going to be shifts that are difficult to fill. A lot of people don’t take - - -

PN124

THE SENIOR DEPUTY PRESIDENT: That doesn’t answer the question Mr Clancy. The question is what’s the effect of the clause? You’ve told me that it preserves something for a group of employees, but you’re not sure what it is preserving.

PN125

MR CLANCY: Well in the case of 9.7 it preserves the casual team members employed prior 13 December that they may remain a casual team member however by mutual agreement they may seek to convert to full time or part time team member.

PN126

THE SENIOR DEPUTY PRESIDENT: Yes. So new employees after that date don’t have the right to remain is that right?

PN127

MR CLANCY: Not in those terms, no. But equally there’s no right for the employer to insist upon it.

PN128

THE SENIOR DEPUTY PRESIDENT: Yes well, with respect Mr Clancy I think that’s cute because what happens is that they don’t them the shifts.

PN129

MR CLANCY: Well your Honour if I can give an example of some stores in far north Queensland for example the pool of labourers is sufficient for the business, there are many long term casuals there, and there’s been no shift in their employment. If we’ve got team members who have a history with the company and they’re experienced and what not, we’re not going to be putting them off, but they’ve always got the capacity if they say to us I’d like permanent employment and we can accommodate that, then we do.

PN130

THE SENIOR DEPUTY PRESIDENT: All right, 9.8.

PN131

MR CLANCY: Yes.

PN132

THE SENIOR DEPUTY PRESIDENT: Part time term is employed prior to 13 December will maintain their minimum daily engagement of three hours.

PN133

MR CLANCY: Yes.

PN134

THE SENIOR DEPUTY PRESIDENT: So what’s going to be the situation for employees after?

PN135

MR CLANCY: Well part time employees the earlier amendment that I took you to means that they can have – they’ve got to have their core weekly hours – just bear with me your Honour I’ll just get the clause. There is a minimum daily engagement clause, I just don’t have it at my fingertips. I think it may be 10.1.7 indicates that there’s four hours minimum full time, three hours start would apply to part time and casual team members. So there does not appear to be any difference.

PN136

THE SENIOR DEPUTY PRESIDENT: All right, tell me about the saved margin?

PN137

MR CLANCY: Your Honour in broad terms there was that is set out in clause 9.9 some arrangements for people that again were engaged before the certification of the agreement in December 2005. My understanding is that the clause was to operate to compensate people who were coming across from operating under the award, because the 2005 agreement was the first certified agreement relating to the business. It sets out in 9.9.3 various wage increases to assist with that conversion. You’ll note with 9.9.3(g) that the last increase was payable on 1 February 2008.

PN138

We did have some discussions around this during the negotiations. The feeling was that the clause has probably done it’s work, but out of an abundance of caution, we’ve left it in the agreement. As to the substantive changes that took place in that clause 9.9, again they are limited to changing the certification of this agreement to reflect employment prior to 13 December 2005.

PN139

THE SENIOR DEPUTY PRESIDENT: Take me over to 10.1.3.

PN140

MR CLANCY: Yes 10.1.3 is change whereby if there’s a roster change there’s now a right to dispute that roster change through the dispute settlement procedure. So the circumstance will be that there’s – there’ll be seven days notice. If there is a disagreement about that there’ll be 14 days written notice in lieu of the seven and then the dispute settlement procedure under the agreement will operate to try and resolve the issue.

PN141

THE SENIOR DEPUTY PRESIDENT: What’s the effect of 10.1.7?

PN142

MR CLANCY: Again, the change there is a clarification of the ordinary working hours per week of casuals at 38. So at the tail end of the sentence there.

PN143

THE SENIOR DEPUTY PRESIDENT: And it used to be 44 is it?

PN144

MR CLANCY: Well the agreement didn’t reflect it but the arrangements that were in place were again going back to the way in which the agreement was operating with those overtime payments that they were being made as I understand after the 38 hours week worked. We put it in the agreement now so it’s there.

PN145

THE SENIOR DEPUTY PRESIDENT: Yes.

PN146

MR CLANCY: There’s a change in 10.1.10.

PN147

THE SENIOR DEPUTY PRESIDENT: Yes

PN148

MR CLANCY: This is a capacity for an employee who wants to have non consecutive days off, there’s a capacity then to request for that in writing and then there’s a little process there set out in (a), (b), and (c), where if they want to revert to having consecutive days off they can request that in writing again, and there’s also a capacity for the union to be involved.

PN149

THE SENIOR DEPUTY PRESIDENT: Yes.

PN150

MR CLANCY: In terms of the final changes to the areas 10.1.14.

PN151

THE SENIOR DEPUTY PRESIDENT: Yes, I can see that.

PN152

MR CLANCY: The next change is clause 10.2.1, 10.2.2 it’s an expansion in the spread of hours for which the 30 per cent loading is payable its stretched out from midnight to 5 am to midnight to 6 am. Then the second change in 10.2.2 is a new penalty payment structure for Saturday work, or the effect of it is from 12 noon Saturday until midnight Saturday it will now attract a 50 per cent loading, whereas in the previous agreement 12 noon Saturday to 6 pm Saturday attracted a 30 per cent loading and then form 6 pm onwards it was 50 per cent.

PN153

THE SENIOR DEPUTY PRESIDENT: So the first change there was a 30 per cent loading to 5 am and then after 5 am what did you get?

PN154

MR CLANCY: On Monday to Friday you’d be on the ordinary time 100 per cent rate. We’ve increased the spread so now until 6 pm you’ll attract a 30 per cent loading then from 6 am you’d be on the 100 per cent rate.

PN155

THE SENIOR DEPUTY PRESIDENT: All right and the effect of the second change is to introduce 50 per cent after midday is it?

PN156

MR CLANCY: Yes.

PN157

THE SENIOR DEPUTY PRESIDENT: Instead of 30 per cent between midday and six?

PN158

MR CLANCY: Yes.

PN159

THE SENIOR DEPUTY PRESIDENT: Yes.

PN160

MR CLANCY: The clause 10.3 we’ve discussed earlier and the way it’s drafted now reflects that for permanent team members the overtime arrangements are set out here and for casuals it’s set out earlier in the agreement at 8.1.3. The next change is to 10.4 it simply some formatting changes.

PN161

THE SENIOR DEPUTY PRESIDENT: Yes.

PN162

MR CLANCY: Again 10.5 what has occurred in this, there’s in substances changed, it’s just been the order of the entitlements has been reversed for the sake of clarity. In fact there was some confusion about was a crib break and what a meal break and rest break was, so the parties decided to order in this way and make the clarifying arrangements out in the stores.

PN163

THE SENIOR DEPUTY PRESIDENT: So there’s no change here bar a formatting change is it?

PN164

MR CLANCY: Correct.

PN165

THE SENIOR DEPUTY PRESIDENT: Yes, all right.

PN166

MR CLANCY: The next change is sick leave. This is an entirely new clause agreed, the headline here is that the entitlement has increased from for the permanent employees from 60.8 hours per annum to 76. There’s a range of other matters associated with notification, documentation requirements which don’t change in substance from the first agreement.

PN167

THE SENIOR DEPUTY PRESIDENT: Very well.

PN168

MR CLANCY: Similarly the changes to carers and family leave, there’s a new clause reflecting the entitlement to 76 hours paid carers leave per annum and also inserting the entitlement to unpaid carers leave. The next change deals with compassionate leave. The original agreement provided for compassionate leave on the occasion of death. We’ve inserted a new entitlement to unpaid shift of other close relatives, ie, relatives aren’t defined in 13.1.1 and 13.1.12 and we’ve also introduced the second limb to compassionate leave, which is the entitlement due to serious injury and illness which wasn’t present in the first agreement.

PN169

THE SENIOR DEPUTY PRESIDENT: The annual leave entitlement at the end of each continuous year of service is entitled to four weeks, part timers – on the basis of average weekly ordinary hours of work in the preceding 12 months. On termination within the 12 months, so before you’ve got 12 months service, is it pro rata payment?

PN170

MR CLANCY: Yes.

PN171

THE SENIOR DEPUTY PRESIDENT: Yes.

PN172

MR CLANCY: The other changes there to the annual leave, well changes to the annual leave clause are there in 14.1.7 and 14.1.8. There are two points of clarification, one is the clause that deals with a public holiday falling within a period of annual leave and the second that clarifies the rate of pay that’s paid when outstanding accrued annual leave is paid on termination. The change in 14.2 is to the cashing out of annual leave provisions they have been varied to reflect the current requirements of the Workplace Relations Act.

PN173

THE SENIOR DEPUTY PRESIDENT: Yes.

PN174

MR CLANCY: The next change is to the long service leave clause and what has been done here has been to insert a new right to paid leave of absence. The next change is to the jury service clause and its a minor change to 16.3 to clarify the requirements in order to receive payment.

PN175

THE SENIOR DEPUTY PRESIDENT: Yes, that’s all right you can go to 24.2.

PN176

MR CLANCY: Yes, all right the changes to 24.2 this is the public holiday clause. There have been inserted in some arrangements that are to apply in the case where there are additional or substitute days gazetted by either the federal or state government and what the parties have done has been to put into the agreement arrangements that they have agreed during the life of the first agreement. So it sort of sets out so hopefully to clarify things in the stores, what will apply when they are substituted or additional days, particularly in and around Christmas Day and Boxing Day. The final change there in 24.3.1 reflects that work on a public holiday is voluntary and that’s dealt with in the first paragraph of that amendment.

PN177

THE SENIOR DEPUTY PRESIDENT: So a casual working on Christmas Day gets what effectively time and 80 is it?

PN178

MR CLANCY: Yes it’s the rate there in 8.1.3 of the table.

PN179

THE SENIOR DEPUTY PRESIDENT: Yes which is about what time and a half is it, 31 on 20?

PN180

MR CLANCY: Yes, or 31, 04.

PN181

THE SENIOR DEPUTY PRESIDENT: Plus their 30 per cent loading?

PN182

MR CLANCY: Well that’s inclusive.

PN183

THE SENIOR DEPUTY PRESIDENT: Yes, yes but I’m comparing it to a full timer, permanent, whereas permanent gets double time and a half.

PN184

MR CLANCY: Yes, the Christmas Day rate again is borne out of the award provision in fact the award provision for Christmas Day I’ve got the award here
– I believe it was for a casual again it’s just covered as the public holiday rate, so what we’ve done is added to the public holiday casual rate, an extra well in the first year there’s almost an extra $4 an hour. The remaining changes there to the public holiday clause in 24.5.1 are some punctuation insertions. There’s also in clause 26.8.2 the abandonment of employment clause, some formatting changes, nothing of substance changes there.

PN185

THE SENIOR DEPUTY PRESIDENT: Yes.

PN186

MR CLANCY: Then at the back end of the agreement there’s some new clauses inserted clause 32 has the capacity to salary sacrifice by company authorisation and a new training and information, communication session clause which was discussed by the parties and terms agreed upon.

PN187

THE SENIOR DEPUTY PRESIDENT: The salary sacrifice this is into super is it?

PN188

MR CLANCY: It can be super and it can be other things, such as a company share plan or there was already your Honour in the agreement the capacity to salary sacrifice for super and the salary sacrifice provision has been broadened so that it includes things beyond superannuation.

PN189

THE SENIOR DEPUTY PRESIDENT: So this only operates at the request of the member?

PN190

MR CLANCY: Yes there’s got to be mutual agreement for it to operate.

PN191

THE SENIOR DEPUTY PRESIDENT: Yes. Can I get out of it once I’m in it?

PN192

MR CLANCY: Beg your pardon?

PN193

THE SENIOR DEPUTY PRESIDENT: Once I opt to go into the salary sacrifice arrangement can I get out of it when I want to?

PN194

MR CLANCY: Yes.

PN195

THE SENIOR DEPUTY PRESIDENT: Where’s that?

PN196

MR CLANCY: 32.1.4.

PN197

THE SENIOR DEPUTY PRESIDENT: So that variation can be down to zero can it?

PN198

MR CLANCY: Yes.

PN199

THE SENIOR DEPUTY PRESIDENT: Very well.

PN200

MR CLANCY: The next changes relate to the parental leave appendix A and the headline here is the entitlements change from 78 weeks unpaid to 104 weeks. That’s reflected in the series of amendments there.

PN201

THE SENIOR DEPUTY PRESIDENT: Yes.

PN202

MR CLANCY: There’s also some punctuation changes throughout. The next one is appendix B the superannuation.

PN203

THE SENIOR DEPUTY PRESIDENT: Yes I can see that, that’s fine, okay.

PN204

MR CLANCY: Appendix B is the supported wage appendix. There are some amendments as to style and italics, but the headline here is The Increase in the Supported Wages has gone from $62 per week to $69 per week and then the final appendix updates the West Australian location allowances.

PN205

THE SENIOR DEPUTY PRESIDENT: Anything else Mr Clancy?

PN206

MR CLANCY: No, that’s all your Honour.

PN207

THE SENIOR DEPUTY PRESIDENT: Thank you Mr Ryan.

PN208

MR RYAN: The SDA supports the application for variation and support the submissions of Mr Clancy. To the extent that you were asking questions that weren’t answered, one of the questions you asked is, is it cheaper for an employer to employ a part timer or a casual? Coles Express or Eureka Operation commenced on the basis that they purchased existing Shell franchises that were operating under the Vehicle Industry RS & R award, so that the RS & R award was the actual instrument that applied at the point of time that Eureka took over. So it’s the RS & R award that’s also the underpinning award for this agreement.

PN209

As you would have heard from the SDA on several occasions including matters which were truncated by the introduction of WorkChoices, we’ve always made it very clear that any analysis of the RS & R award shows that in particular in relation to the classification of console operator the casual rates are effectively lower than the part time and full time rates for anything other than the 9 to 5 Monday to Friday trading pack and that reflects a long history of operation of that award and the difficulties of trying to move away from clause 6.1(c) I think it is of the RS & R award, where the casual console operator has always been – had their wages expressed in a table and not in a set of clauses which would provide penalty loadings on to a base rate.

PN210

But the clause in the RS & R award has always in relation to a console operator set a table of dollar values for each and every hour worked over each and every day, including public holidays and those penalty rates, certainly for night time work, weekend work, public holiday work, are significantly lower than the actual rates of pay that have applied to part time workers employed as console operators under the RS & R award. The casual rates for the console operator under the RS & R award are even lower than the casual rates for persons employed in retail work under the RS & R award because if you’re employed as a casual as a retail worker under RS & R you’re subject to the standard award approach, which is here is the base rate and then these are the loadings, a percentage loading for being a casual, a higher percentage for certain penalty hours and the rates of pay for normal casuals under the RS & R award are higher than the rates for the casual console operators.

PN211

Now this agreement the first, or the 2005 agreement simply reflected the fact that Eureka Operation picked up businesses which were covered by and applying the RS & R award but applying it in relation to casual console operators. It’s the casual console operator provisions which are reflected in this agreement. As Mr Clancy made clear, even the wage rates in clause 8.1.3 are to reflect the current wage rates as issued by the Workplace Authority as the start rates for the casual console operator. They are not called casual console operators here, they are just team members, but the underlying rate of pay that applies is the casual console operator.

PN212

That’s one of the problems of the SDA and other unions have had with RS & R award for a long time, is that convoluted structure of clause 6(1)(c) of the RS & R award is the table format for casual console operators, which ended up applying a completely different rationale for the payment of those casuals as it did for any other casual under that award and a completely different rationale for the payment of part time and full time employees under the award. So in that sense the answer to your Honour’s question is that on hours of work outside of an effectively a six to six operation not nine to five, but about a six to six operation Monday to Friday, it is effectively cheaper to employ a casual, than it is to employ a permanent employee which is also one of the reasons why - - -

PN213

THE SENIOR DEPUTY PRESIDENT: That’s under the RS & R award?

PN214

MR RYAN: And under this agreement as well, because this agreement reflects the rates of pay that came directly off the RS & R award and as you’ve just identified your Honour even with things like the public holiday rate or Christmas rate, you’ve got double time and double time and a half for the permanents but a dollar amount which is not the same as double time and a half for a casual, let alone 275 per cent which – or 270 per cent, which would be public holiday penalty plus the casual loading. None of those sorts of things exist in this agreement because it reflects the RS & R award.

PN215

THE SENIOR DEPUTY PRESIDENT: In this area there’s a minimum three hour shift is that right?

PN216

MR RYAN: Yes.

PN217

THE SENIOR DEPUTY PRESIDENT: Set aside the regional areas, in the metropolitan areas where presumably the bulk of these are anyway, what do they employ them on? Do they employ them on those three to four hour shifts or do they employ them on eight hours?

PN218

MR RYAN: Not having looked at this particular company’s operations for quite some time, the norm has been to employ them on certainly more than a straight three hour shift, because they have patterns of work which fit with the block in the day time, which you can put your permanents on because it’s cheaper to put your permanents on there than pay any form of casual labour. Then you put your casuals on at night time. For a number of the casuals working the night shift is not a three hour position, it could be a six or eight hour night shift, where they actually will work a block of hours maybe from 9 o’clock to 3 am that sort of thing they’ll work blocks which are much longer than just a straight three hour minimum.

PN219

THE SENIOR DEPUTY PRESIDENT: But I suppose there’s rush hours?

PN220

MR RYAN: Yes. But most of the operations are one person operations rather than two person operations which has also been a problem that the way the award has operated and this agreement reflects that.

PN221

THE SENIOR DEPUTY PRESIDENT: Yes, all right. Anything else Mr Ryan?

PN222

MR RYAN: No, your Honour.

PN223

THE SENIOR DEPUTY PRESIDENT: Thank you. Well having regard to the material that is contained on the file in this matter and the submissions put to me, I’m satisfied I should vary the agreement in the Eureka Operations Fuel and Convenience Now Team Member Agreement 2005. I’m satisfied I should vary in accordance with the application in this matter. The variation to the agreement will come into force from today’s date and remain in force until 30 September 2011. I will now adjourn.

<ADJOURNED ACCORDINGLY [10.20AM]