AG2008/1606, Transcript of Proceedings [2009] FWATrans 50 (29 January 2009)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 19615-1

SENIOR DEPUTY PRESIDENT RICHARDS

AG2008/1606

cl.2A(1)(a) Sch. 7 - Application for extension of pre-reform certified agreement by person bound

Shop, Distributive and Allied Employees Association-Queensland Branch
and
Coles Supermarkets (Australia) Pty Ltd
(AG2008/1606)
Coles Myer Logistics Forest Lake - Certified Agreement 2005

(ODN AG2005/6727)
[AG844144 Print PR964913]]




Brisbane

9.37AM, WEDNESDAY, 24 DECEMBER 2008

THE FOLLOWING PROCEEDINGS WERE CONDUCTED VIA VIDEO CONFERENCE AND RECORDED IN BRISBANE

PN1

MS P TOWN: Good morning, may it please the Commission, I appear for the Shop, Distributive and Allied Employees Association.

PN2

MR R CLANCY: If the Commission pleases, I appear on behalf of the Coles Group Supply Chain Pty Ltd.

PN3

THE SENIOR DEPUTY PRESIDENT: Thank you. Mr Clancy, I trust that you received by email last yesterday afternoon a copy of what I call loosely my statutory checklists?

PN4

MR CLANCY: Yes, your Honour, I did.

PN5

THE SENIOR DEPUTY PRESIDENT: What I intend to do and what I usually do is simply, having collated all the relevant statutory requirements that need to be discharged for purposes of meeting the requirements of Clause 2A of Schedule 7 I work these questions for my own purposes in an attempt to see whether I can determine all the relevant matters from the materials before me and revert to yourselves where I have any queries or questions or where I need some corroborative. What I propose to do therefore is to work through the checklist as it is and invite comment only as I require it.

PN6

First of all, I notice that - and I thank you for providing me with a Word version, the marked-up version of the prospectively varied and extended agreement plus the Word version of the consolidated version of the proposed varied agreement. They will be used for purposes of the electronic publication of the same. If there is any dispute at any stage about the accuracy of those electronic copies of the instrument then of course the parties ought to revert to the hard copy which will be retained on file and which is the copy on which my order will be based.

PN7

That said, I have effectively two applications before me, that is applications under Rule 55 and Rule 55A by way of Form 49A and Form 49B in relation to an application to vary the Coles Myer Logistics Forest Lake - Certified Agreement 2005 which is referenced as AG844144 and to extend its nominal expiry date.

PN8

For purposes of paragraph 2A of Part 2 of Schedule 7 of the Act, I am required to determine whether the application is by a person who is bound by the pre-reform certified agreement in this instance and, in this instance, indeed the applicant is the SDA which is a party bound by the agreement and appropriately therefore the requirements of the Schedule are met in that regard.

PN9

In respect of paragraph 2A(2)(a) and paragraph 2A(4), all the parties who are bound by the pre-reform certified agreement need to have genuinely agreed to both the variation and extension of the nominal expiry date of the agreement as described.

PN10

I have before me a statutory declaration by Mr Blandthorn, national assistant secretary of the SDA. That statutory declaration attests that if I recall actually there was a period in which the employees who are to be subject to the agreement now and subject prospectively to the varied agreement, they had a period in which to deliberate on the variations as sought and to ask questions of both the company and its union representative. There was subsequently a ballot that took place between 19 and 22 December. The ballot was completed on 22 December and the returns were, if I recall from another email I was sent, 468 - the margin effectively was a 468 to 125 margin in favour of the variations. Am I right in that regard?

PN11

MS TOWN: Yes, that’s correct, your Honour.

PN12

THE SENIOR DEPUTY PRESIDENT: On the basis of that statutory declaration by Mr Blanthorn and I presume it’s corroborated by yourself, Mr Clancy?

PN13

MR CLANCY: It is, your Honour.

PN14

THE SENIOR DEPUTY PRESIDENT: Good. On that basis the requirements of Schedule 7 are therefore discharged.

PN15

Paragraph 2A(2)(b)(i) and (ii) requires that I determine whether or not either of the parties, before the introduction date - which in actuality is 13 February 2008, not 14 February 2008 - have organised or threatened to organise or engage in any industrial action in relation to the agreement that is before me or made application under section 451 of the Act.

PN16

I have a written statement jointly signed by Mr Blanthorn himself on the 22nd of this month and the company has signed presumably by its authorised delegate, Mr Polling who is the distribution centre manager, is that right?

PN17

MR CLANCY: That’s correct, your Honour.

PN18

THE SENIOR DEPUTY PRESIDENT: On 23 December, both attesting that neither party is non-compliant with the requirements of Schedule 7 in that regard so the requirements are therefore discharged.

PN19

Paragraph 2A(2)(c)(i) and (ii) requires me to determine whether or not the variations as proposed would, on balance, result in a reduction in the overall terms and conditions of the employees bound by the prospectively varied agreement. Well, I have a statutory declaration by Mr Ketter as well as - or perhaps it is - sorry, it might be Mr Blanthorn’s now. It was originally proposed to be Mr Ketter’s, wasn’t it?

PN20

MR CLANCY: Yes.

PN21

THE SENIOR DEPUTY PRESIDENT: But that attests to the fact that there is no reduction. But that said, it is best though that I examine the material circumstances themselves and look at the agreement as varied to make that determination for myself.

PN22

From my examination and my prior knowledge of the agreement, the agreement as proposed to be varied provides for a range of increases to all classifications in respect of wage increases over the cycle of the agreement. There are also increases for I think virtually a full range of allowances, the banking offset charges, the laundry allowances, the maintenance allowances, shift penalties and the first aid allowances as well and I think the bulk of the remainder of the variations as sought accommodate name changes which I’ll come to shortly and provide for further clarification of the entitlement to public holidays in other forms of leave, amongst other matters such as - I think there is also, from memory, a further clarification of the clothing entitlements as well, if I recall.

PN23

They form the bulk of the remaining non-wage, non-allowance variations. But looked at singly and globally, I cannot but conclude on the material circumstances of the variations as sought that the variations as ought really in fact enhance the terms and conditions of the employees bound by the agreement. Therefore, the requirements of Schedule 7 have been met.

PN24

Paragraph 2A(3) of the proposed to be varied and amended - sorry, of the proposed amended nominal expiry date of the pre-reform certified agreement requires that the agreement cannot be extended beyond three years of the date on which any order that I might make is made. Well, in the circumstances of this application, the date which is sought to be extended is an extension to 5 August 2011 and which falls within the three-year threshold and therefore the requirements of paragraph 2A(3) of Schedule 7 are met.

PN25

I note, and it is an important note, that the variations as sought encompass a change to the title of the agreement and, in my view, properly so and requires consequential amendments and variations throughout the agreement to reflect that title. The original title as I enunciated at the start of these proceedings was a reference to the Coles Myer Logistics Pty Ltd but since the sale of Myer of course the relevant legal entity is now the Coles Group Supply Chain Pty Ltd and the title of the agreement has been changed to reflect that change in the legal status of the employer as have all the other requisite references throughout the body of the agreement.

PN26

In my view, the variation of such a - particularly for such reasons is an important matter, is a matter of substance. It constitutes, in my view, a term of the agreement, is rightly the subject of the variation. It properly identifies the legal entity which is bound by the agreement and which has entitlements and obligations and it properly entitles the agreement and provides a locus for employees who are subject to the agreement to identify where their rights, entitlements and obligations properly reside. In my view, the change to the title is therefore, for all those reasons, appropriate and constitutes a term of the agreement and is within the power of the Commission to appropriately vary.

PN27

That said, are there any other matters, Ms Town or Mr Clancy that I should give consideration to in relation to this matter?

PN28

MR CLANCY: No, your Honour.

PN29

THE SENIOR DEPUTY PRESIDENT: Nothing from Mr Clancy. And Ms Town?

PN30

MS TOWN: No, nothing from me, thank you, Senior Deputy President.

PN31

THE SENIOR DEPUTY PRESIDENT: Nothing from Ms Town.

PN32

I will therefore approve both the application to vary and the application to extend the nominal expiry date of the agreement. The order will have effect as of today and be referable to my decision in transcript today and hopefully over the course of today I’ll be able to issue that order to you.

PN33

Thank you for your assistance over the last several days in bringing this material properly together in a very tight timeframe but all the deadlines were met in the end. So thank you both. Seasons greetings and we’re adjourned.

PN34

MS TOWN: Thank you.

PN35

MR CLANCY: Your Honour - - -

PN36

THE SENIOR DEPUTY PRESIDENT: Yes, Mr Clancy?

PN37

MR CLANCY: Your Honour, on behalf of the company I would like to acknowledge your assistance in having this matter heard in such an expeditious manner and it is greatly appreciated to have it tied up before Christmas. I would also like to acknowledge the work of your associate, Julie Hams and this week Angie Delo and the officials of the SDAEA who have also worked very hard to get all the matters tied up. And I’d like to also acknowledge the delegates who were involved in the negotiations for their contribution along the way. From our perspective, it’s very satisfying to have the matter finalised prior to Christmas. If the Commission pleases.

PN38

THE SENIOR DEPUTY PRESIDENT: Good. Thank you very much, Mr Clancy, I’m sure there were many chefs in the making of this exercise.

PN39

MR CLANCY: Yes.

PN40

THE SENIOR DEPUTY PRESIDENT: Good, thank you very much. Thank you, Ms Town. We’re adjourned. Thank you.

<ADJOURNED ACCORDINGLY [9.49AM]