AG2010/3196, Transcript of Proceedings [2010] FWATrans 154 (23 February 2010)

TRANSCRIPT OF PROCEEDINGS

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Fair Work Act 2009 24824-1

SENIOR DEPUTY PRESIDENT ACTON

AG2010/3196

s.185 - Application for approval of a single-enterprise agreement

Fluid Power (NT) Pty Ltd
and
Ms Katherine Stone
(AG2010/3196)





Melbourne

1.39PM, THURSDAY, 11 FEBRUARY 2010

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

PN1

THE SENIOR DEPUTY PRESIDENT: It's Senior Deputy President Acton here. It's Miss Ross, is it?

PN2

MS ROSS: Mrs Ross, yes. How are you today?

PN3

THE SENIOR DEPUTY PRESIDENT: I'm fine.

PN4

MS ROSS: Good, thank you. I do apologise, I wasn't aware that I had to actually be present.

PN5

THE SENIOR DEPUTY PRESIDENT: Well, the reason I was listing it for a proceeding in which I required you to be present is because on the face of the F17 form, which is the form you filled in about the employees' declaration in support of the application.

PN6

MS ROSS: Right?

PN7

THE SENIOR DEPUTY PRESIDENT: On the face of that form there's a fatal error in the application which will mean the agreement will have to be voted on again. But I thought I should also go through with you some of the concerns I had about the agreement, so that you could address those when you vote on it again, or before you vote on it again.

PN8

MS ROSS: Fine.

PN9

THE SENIOR DEPUTY PRESIDENT: If you've got a pen and paper I'll tell you what the problems I perceive are.

PN10

MS ROSS: Yes, not a problem.

PN11

THE SENIOR DEPUTY PRESIDENT: Some of the issues. In terms of the basic problem with the application, in the Form F17 which is the employees' declaration, it says that the employees were given the notice of representational rights by the employer on 21 December. The agreement, it appears, was actually voted on 29 December, right?

PN12

MS ROSS: Right, yes.

PN13

THE SENIOR DEPUTY PRESIDENT: I'm assuming that the employees voted for the agreement all on the same day?

PN14

MS ROSS: Yes, right.

PN15

THE SENIOR DEPUTY PRESIDENT: There's a requirement of 21 days, an entire 21 days, between when the notice of representational rights goes out and the first day on which voting starts. It has to be a clear 21 days, so in effect it's 22 days. You can't vote until the 22nd day after you give the notice of representational rights.

PN16

MS ROSS: Okay, well that was on the - all right, this has been confusing. I was confuse - I was obviously confused there because they had - everything was given to them on 30 November.

PN17

THE SENIOR DEPUTY PRESIDENT: That's not what it says in the - - -

PN18

MS ROSS: For the three weeks of bargaining, and that sort of stuff.

PN19

THE SENIOR DEPUTY PRESIDENT: Well that's not what it says in clause 2.7 of the employer's declaration.

PN20

MS ROSS: Okay I'm sorry, I confused the - as to what that actually meant. Okay, so that has to be a clear 22 days.

PN21

THE SENIOR DEPUTY PRESIDENT: Yes.

PN22

MS ROSS: Okay.

PN23

THE SENIOR DEPUTY PRESIDENT: Now in terms of the actual agreement I need to know how the employee representative was selected. I need evidence of that. If you're going to file another Form F17, because you say the F17 is in error, I'll need evidence of when the notice of representational rights was given to the employees.

PN24

MS ROSS: Okay.

PN25

THE SENIOR DEPUTY PRESIDENT: The agreement at clause 25 - - -

PN26

MS ROSS: Clause 25, yes. So the clause of individual flexibility?

PN27

THE SENIOR DEPUTY PRESIDENT: Yes, that doesn't meet the requirements of the Act because it doesn't refer to the agreement not containing unlawful terms et cetera. So the model flexibility clause would go in. I suspect that's of no consequence to you because you're probably intending to reflect the model clause anyway.

PN28

MS ROSS: Okay, so that's - right.

PN29

THE SENIOR DEPUTY PRESIDENT: The meaning of clauses 5.6 and 6.4 are unclear to me. Clause 6.2 - - -

PN30

MS ROSS: Sorry, what was that, 5.6 and?

PN31

THE SENIOR DEPUTY PRESIDENT: 5.6 and 6.4.

PN32

MS ROSS: 6.4, okay.

PN33

THE SENIOR DEPUTY PRESIDENT: Clause 6.2 refers to the Fair Pay Commission.

PN34

MS ROSS: Yes.

PN35

THE SENIOR DEPUTY PRESIDENT: Of course there's no Fair Pay Commission.

PN36

MS ROSS: Okay.

PN37

THE SENIOR DEPUTY PRESIDENT: Clause 6.3 suggests that the casual loading is going to be 20 per cent, "but may be adjusted as advised by Fair Work Australia throughout the life of this agreement". It's unclear to me what you mean by Fair Work Australia advising you.

PN38

MS ROSS: Well, as it says it's (indistinct) Fair Work Australia could put it up to 25 per cent.

PN39

THE SENIOR DEPUTY PRESIDENT: Yes, well it's probably a matter of clarification about what advice means.

PN40

MS ROSS: Okay, so when we resubmit this and change it to 25 per cent would be okay?

PN41

THE SENIOR DEPUTY PRESIDENT: The percentage is up to you. What my concern is that the clause provides it will be adjusted as advised by Fair Work Australia. Fair Work Australia would not normally advise anyone to do anything. We may bring down an award which contains a rate, but the word advise is ambiguous.

PN42

MS ROSS: Okay.

PN43

THE SENIOR DEPUTY PRESIDENT: Okay?

PN44

MS ROSS: Yes.

PN45

THE SENIOR DEPUTY PRESIDENT: Clause 8.4 refers to the living away from home allowance.

PN46

MS ROSS: Yes?

PN47

THE SENIOR DEPUTY PRESIDENT: But doesn't say what the amount is.

PN48

MS ROSS: Well that's because according to the Australian Tax Office the amount payable differs for different regions, for different towns, and that sort of stuff.

PN49

THE SENIOR DEPUTY PRESIDENT: Well how are you going to pick the rate; are you going to refer to some tax document?

PN50

MS ROSS: Yes, we have the tax rates for travelling away from home allowances.

PN51

THE SENIOR DEPUTY PRESIDENT: Well you need to refer to that document in this clause.

PN52

MS ROSS: Okay.

PN53

THE SENIOR DEPUTY PRESIDENT: Clauses 10, 11 and 13 refer to the Fair Pay and Condition Standards. It's unclear to me whether you mean those or the National Employment Standards.

PN54

MS ROSS: Okay, yes that would be the National Employment Standards. Okay, I'll change that. Okay.

PN55

THE SENIOR DEPUTY PRESIDENT: There has been no Form F18 filed, which is the form from the bargaining representative.

PN56

MS ROSS: There is no bargaining rep. They bargained individually, so do we still need to lodge that one?

PN57

THE SENIOR DEPUTY PRESIDENT: Well, the documents has been signed by someone who suggests they're an employee representative or bargaining agent.

PN58

MS ROSS: Well there is an employee representative, not as a bargaining agent.

PN59

THE SENIOR DEPUTY PRESIDENT: Yes, and I need to know how they were authorised by the other employees to sign this document.

PN60

MS ROSS: Okay, yes. All right.

PN61

THE SENIOR DEPUTY PRESIDENT: Just hold on a second.

PN62

MS ROSS: Not a problem.

PN63

THE SENIOR DEPUTY PRESIDENT: The Form F17 measures this agreement - given the vote on this was before 1 January - against the Metal Industry Northern Territory Award 2003, and asks whether the agreement contains any terms and conditions that are less than official than in that award, and the answer is no. I doubt whether that answer is right because there needs to be a comparison, line by line, of each of the conditions in the award versus the conditions in the agreement.

PN64

MS ROSS: Okay.

PN65

THE SENIOR DEPUTY PRESIDENT: So I need that 3.3 and 3.4 and 3.5 of the F17 form answered in full.

PN66

MS ROSS: Okay, not a problem.

PN67

THE SENIOR DEPUTY PRESIDENT: I also need a document setting out, say for the first week of employment in December last year, what each of the employees' remuneration was under the award, or would have been under the award, vis à vis what they would have earned if they had been under this agreement.

PN68

MS ROSS: So a comparison between the award and the agreement?

PN69

THE SENIOR DEPUTY PRESIDENT: Yes.

PN70

MS ROSS: Yes.

PN71

THE SENIOR DEPUTY PRESIDENT: In terms of if the employee had done the hours they did in the first full week of December last year, what they would have earned under the award vis à vis what they would have earned under the agreement if it had applied.

PN72

MS ROSS: Yes, not a problem.

PN73

THE SENIOR DEPUTY PRESIDENT: Okay?

PN74

MS ROSS: Right, yes.

PN75

THE SENIOR DEPUTY PRESIDENT: So when I receive that documentation I can have another look at it.

PN76

MS ROSS: Fabulous. So do I just re-lodge it like I did before, through the internet, or do I have to physically post it to you?

PN77

THE SENIOR DEPUTY PRESIDENT: No, you can do it through the internet.

PN78

MS ROSS: Yes.

PN79

THE SENIOR DEPUTY PRESIDENT: But apart from all those other issues I raised.

PN80

MS ROSS: Yes.

PN81

THE SENIOR DEPUTY PRESIDENT: The initial question for me is when were the employees given the notice of representational rights concerning bargaining representatives, or employee representational rights, compared to when they voted on the agreement.

PN82

MS ROSS: Yes, okay.

PN83

THE SENIOR DEPUTY PRESIDENT: All right?

PN84

MS ROSS: Yes, fine.

PN85

THE SENIOR DEPUTY PRESIDENT: I'll adjourn this matter on that basis.

PN86

MS ROSS: Thank you.

<ADJOURNED INDEFINITELY [1.53PM]