AG2009/24239, Transcript of Proceedings [2010] FWATrans 219 (23 February 2010)

TRANSCRIPT OF PROCEEDINGS

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Fair Work Act 2009 24757-1

COMMISSIONER CRIBB

AG2009/24239

s.319 - Application for an order re instruments covering new employer and non-transferring employees in agreements

Application by Delaware North Kings Canyon Pty Ltd
(AG2009/24239)
Voyages Hotels and Resorts (Northern Territory) Workplace Agreement 2008

(ODN AG2004/2115)
[AG865651 Print ]]




Melbourne

1.37PM, TUESDAY, 9 FEBRUARY 2010

PN1

THE COMMISSIONER: Good afternoon. I shall take appearances, thank you.

PN2

MR M. DISERIO: Diserio, initials M.V., and with me is MS G. HENNESSEY.

PN3

THE COMMISSIONER: Good afternoon, Ms Hennessey. You may be seated. Mr Diserio can't because he's got to make learned submissions.

PN4

MR DISERIO: That's right. I've tried to expedite things as much as I'm able to, commissioner. If I could hand up - I have prepared an outline of submissions - - -

PN5

THE COMMISSIONER: Lovely. Thank you.

PN6

MR DISERIO: - - - to assist you. In order to present the foundations for the application, I do wish to tender some further statutory declarations that are, I believe, necessary in terms of indicating to you that we have met the requirements or the directions that were given.

PN7

THE COMMISSIONER: Thank you.

PN8

MR DISERIO: They look bigger than probably they need to be - - -

PN9

THE COMMISSIONER: They do.

PN10

MR DISERIO: - - - but it's only because the declaration actually refers to other documents were provided, and that's just giving true copies of them. So in actual fact the actual operative parts are quite simple, but we've chopped a tree or two down in order to get to this point.

PN11

THE COMMISSIONER: You've done that.

PN12

MR DISERIO: If I could indicate in order of tender - - -

PN13

THE COMMISSIONER: Yes.

PN14

MR DISERIO: - - - the first is a statutory declaration of Helen West, which was declared - - -

PN15

THE COMMISSIONER: That was on the file.

PN16

MR DISERIO: No.

PN17

THE COMMISSIONER: Wasn't it?

PN18

MR DISERIO: It was the first one on the file. There's a second one dated 2 February - and I'll explain all of those. As I say, the requirement for essentially three more statutory declarations, apart from what was on the file, are these. Since we conducted the vote, if I can call it that - - -

PN19

THE COMMISSIONER: Yes.

PN20

MR DISERIO: - - - of the existing employees - - -

PN21

THE COMMISSIONER: The ballot paper, yes.

PN22

MR DISERIO: - - - which is all attested to in the first statutory declaration, there has been an incredible turnover of labour at the site.

PN23

THE COMMISSIONER: Oh, no.

PN24

MR DISERIO: I wasn't - - -

PN25

THE COMMISSIONER: That's painful.

PN26

MR DISERIO: I didn't think it was possible that a remote site such as that could have the turnover that it has. I thought, for a start, you had to walk out of the place and therefore you wouldn't leave, but there's been a tremendous turnover. So out of an abundance of caution, we repeated the process - - -

PN27

THE COMMISSIONER: With a different eight - - -

PN28

MR DISERIO: With the next lot of employees.

PN29

THE COMMISSIONER: Fantastic.

PN30

MR DISERIO: Not the ones that we had already - - -

PN31

THE COMMISSIONER: Balloted.

PN32

MR DISERIO: Conducted the ballot.

PN33

THE COMMISSIONER: Yes.

PN34

MR DISERIO: But because there were seven new employees, when we made the application, of which a good majority of those I believe have left and 10 more - in fact I think it might have been even more than that - some greater number joined. Now, we could have taken the view that there are no rules about this under the act and we could have said it's probably the way - we'll follow the rules in making a normal agreement, but, just to be sure, what we did is repeat. Hence - - -

PN35

THE COMMISSIONER: Yes, cool.

PN36

MR DISERIO: - - - another statutory declaration which - - -

PN37

THE COMMISSIONER: From Ms West.

PN38

MR DISERIO: - - - links the first, but with - - -

PN39

THE COMMISSIONER: So am I going to mark both?

PN40

MR DISERIO: I'll get you to mark each one separately - I think would be best.

PN41

THE COMMISSIONER: Yes.

PN42

MR DISERIO: But I just thought I'd explain. So we've got - in the second statutory declaration we now have 11 new employees.

PN43

THE COMMISSIONER: Right. Okay.

PN44

MR DISERIO: So perhaps, for the record, if we could mark the first statutory declaration that is on the tendered - - -

PN45

THE COMMISSIONER: Yes.

PN46

MR DISERIO: That was filed with the application.

PN47

THE COMMISSIONER: That's correct.

PN48

MR DISERIO: So we could have that statutory declaration perhaps marked just for - - -

PN49

THE COMMISSIONER: I think that's a good idea.

PN50

MR DISERIO: The one that has just been handed up is the second statutory declaration.

PN51

THE COMMISSIONER: Okay. So hold. Otherwise I'm going to get terribly lost. I would like to mark as exhibit A1 the statutory declaration of Ms Helen West that was included in with the application - - -

PN52

MR DISERIO: That was made, commissioner, on the 23rd - so it was declared on 23 December.

PN53

THE COMMISSIONER: Because I couldn't find that.

PN54

MR DISERIO: It is very difficult to find where it actually is.

PN55

THE COMMISSIONER: There it is. No.

PN56

MR DISERIO: No, it's - - -

PN57

THE COMMISSIONER: Okay, and so - - -

PN58

MR DISERIO: It is there and it's probably about 16 pages from the end of the bundle.

PN59

THE COMMISSIONER: Okay. So you're telling me the date. That might be easiest.

PN60

MR DISERIO: Yes, 23 December.

PN61

THE COMMISSIONER: So it's the statutory declaration of Ms West dated 23 December 2009.

PN62

MR DISERIO: That's right.

EXHIBIT #A1 STATUTORY DECLARATION OF HELEN WEST DATED 23/12/2009

PN63

THE COMMISSIONER: And then this second one is - - -

PN64

MR DISERIO: The second statutory declaration was declared on 2 February.

PN65

THE COMMISSIONER: 20 February 2010. Cool.

EXHIBIT #A2 STATUTORY DECLARATION BY HELEN WEST DATED 02/02/2010

PN66

MR DISERIO: Then Ms West has made a third statutory declaration - - -

PN67

THE COMMISSIONER: Has Ms West been able to do any of her normal work while preparing these statutory declarations?

PN68

MR DISERIO: This was made yesterday, 8 February. What Ms West attests to is the fact that she handed a true copy of the notice of listing to five named employees and these, I believe, were the ones that remain employed from the first batch.

PN69

THE COMMISSIONER: The first one.

PN70

MR DISERIO: because the second tranche of employees that she gave the notice of listing to, when she went through the voting process, is all set out in her second statutory declaration.

PN71

THE COMMISSIONER: Yes, cool.

PN72

MR DISERIO: Then finally - and again this was more out of an abundance of caution, but this is a statutory declaration of Ms Brie Muston, M-u-s-t-o-n, also made on 8 February and this declares that she forwarded notices of listing to the actual parties to the agreement, being Voyages Hotels and Resorts. That's the vendor of the business that we acquired it from, and also that we served Kings Canyon Nominees, which turns out there were two employees operating as a joint venture, and I believe that Kings Canyon Nominees Pty Ltd are representatives of the Aboriginal community who were involved in the running of the Kings Canyon Resort, together with Voyages Hotels and Resorts. So I hand that up, but that's, as the Irish would say, to be sure, to be sure.

PN73

THE COMMISSIONER: I think you're absolutely right, Mr Diserio. Now, please may I mark the third statutory declaration from Ms Helen West dated 8 February 2010 as exhibit A3.

EXHIBIT #A3 STATUTORY DECLARATION OF HELEN WEST DATED 08/02/2010

PN74

THE COMMISSIONER: Then finally, as exhibit A4, is the statutory declaration of Ms Brie Muston dated 8 February 2010.

EXHIBIT #A4 STATUTORY DECLARATION OF BRIE MUSTON DATED 08/02/2010

PN75

MR DISERIO: And finally, if I could hand up an outline of submissions of today's date.

PN76

THE COMMISSIONER: Is that in addition to that one?

PN77

MR DISERIO: Yes, and I'm not sure whether or not you need to mark that.

PN78

THE COMMISSIONER: I haven't marked that.

PN79

MR DISERIO: Also I hand up an order of Commissioner Thatcher that was made on 4 December - - -

PN80

THE COMMISSIONER: That I probably don't need to mark, but if I may mark your outline of submissions.

EXHIBIT #A5 OUTLINE OF SUBMISSIONS DATED 09/02/2010

PN81

MR DISERIO: In essence, commissioner, I won't take up too much more of your time. The outline of submissions follows pretty much the statutory declaration made by Ms West on 23 December. The major differences are that it brings it up to date with the fact that there have been additional employees that have come into the workplace.

PN82

THE COMMISSIONER: Yes.

PN83

MR DISERIO: If I could draw your attention to paragraph 23, I would like just to make one correction. You'll see it says, "As a result, the applicant received a total number of 17."

PN84

THE COMMISSIONER: Yes.

PN85

MR DISERIO: It should be "seven plus 10 ballot papers," not one.

PN86

THE COMMISSIONER: Yes.

PN87

MR DISERIO: The numbers in brackets represent the first tranche and the second tranche of ballots, and there were in fact - you'll see that there were 17 ballot papers of which seven plus six supported the application. No-one did not support the application. Four neither supported nor objected, because that wasn't an option that was given.

PN88

THE COMMISSIONER: I noticed that.

PN89

MR DISERIO: One employee was on annual leave and didn't participate, and that was a person from the second tranche.

PN90

THE COMMISSIONER: Right. Okay. Good.

PN91

MR DISERIO: I think what we can say is, in terms of section 319 of the Fair Work Act, we certainly are putting before you the views of the employees who will be affected by the order in accordance with subsection (3) paragraph (a), subparagraph (ii) of section 319. In all other respects the material in Ms West's first statutory declaration - and I might say in her second statutory declaration, which sort of repeats it - sets out the need for the uniformity of working conditions under a single agreement. That's set out also in the submissions at paragraph 17.

PN92

In terms of the other matters we've set out - and again as Ms West has done in her statutory declarations - in the outline of submissions at paragraph 12 and the following, they indicate a number of observations that the applicant is able to make as to why relevant employees would not be disadvantaged by the order in relation to the terms and conditions of their employment. That's also as required by paragraph (b) of subsection (iii) of section 319.

PN93

In terms of other matters to take into account, apart from the public interest, as the order that I've handed up of 4 December, it turns out - and I must say this was only discovered through recent researches - the vendor business - we didn't acquire all of the businesses of Voyages in the Northern Territory, we only acquired the Kings Canyon Resort, but there was another resort known as Alice Springs Resort and it was acquired by another business, and they have obviously gone through the same process as we have, and I just thought it would be helpful for the commission to know that there is a precedent - - -

PN94

THE COMMISSIONER: Thank you.

PN95

MR DISERIO: - - - and it appears that there was nothing in that transaction that would cause any concerns to you. I think unless there are any specific questions that all of the matters that you need to be convinced of in relation to this section have been done so in the outline.

PN96

The only other complication, which is referred to in the outline of submissions, of course - since making this application on 24 December, of course, the new modern awards have come into operation. As I understand it the making of a modern award, to operate from 1 January, has the effect of essentially rendering the NAPSA inoperable in respect of the relevant employees, and that was part of our application: seeking an order that those instruments don't operate.

PN97

Now, there's no need for those to operate. As we understand it the modern awards will operate in conjunction with the transferable instrument but, to the extent that there is inconsistency between them, the transferable instrument will operate.

PN98

THE COMMISSIONER: Override it.

PN99

MR DISERIO: Now, by way of observation, the operation of the transferable instrument is to - well, it certainly operated when the NAPSAs existed, to extinguish their operation. It is stated to be a closed agreement. So I am anticipating that there will be very little if any room for any modern award to operate - and I only make those observations on transcript out of an abundance of caution because I'm not in any position, as no doubt the Fair Work is, to know how those two will operate. It's quite a complex agreement. Therefore we've confined our submissions to the observations that we've made. No more, but I believe there's sufficient to allow you to be convinced of the requirements.

PN100

THE COMMISSIONER: Thank you, Mr Diserio.

PN101

MR DISERIO: Thank you.

PN102

THE COMMISSIONER: I really appreciate all of that. The first thing I would like to say is it is greatly appreciated as to the belt and braces approach but the thorough way in which your client has gone about ensuring that the requirements of the act have been met. Leaving aside the trees, it has required a huge amount of effort on your client's part to have communicated to each of the new employees about what was happening and to explain everything to them. All of that has been very ably captured in exhibits 1, 2 and 3, which are the statutory declarations of Ms West. I would just like to compliment the company on all of that work. If you wouldn't mind accepting that and also passing that on to Ms West, that would be appreciated.

PN103

MS HENNESSEY: She will be grateful.

PN104

THE COMMISSIONER: This matter is an application by Delaware North Kings Canyon Pty Ltd, the new employer, for an order in relation to the transfer of business pursuant to section 319 of the Fair Work Act 2009. The application seeks that the Voyages Hotels and Resorts (Northern Territory) Workplace Agreement 2008, which is a transferable instrument, covers any transferring employee employed by the new employer who performs, or is likely to perform, transferring work for the applicant.

PN105

In deciding whether to make the order sought, section 319(3) requires Fair Work Australia to take into account a number of factors. Section 319(3)(a) requires that the views of the new employer and the employees who would be affected by the order are taken into account.

PN106

To this end, as I indicated earlier, three statutory declarations by Ms Helen West were tendered and marked as exhibits A1, A2 and A3. In each of those exhibits there is clear evidence before the tribunal that each of the non-transferring employees have been asked their views and indeed were asked to vote as to whether they wished the transferable instrument to cover them.

PN107

As indicated by Mr Diserio, orally but also in his outline of submissions, which is exhibit A5 at paragraph 13, a very clear majority of those new employees indicated support for the application. There were in fact no employees who did not support the application.

PN108

On this basis, together with the submissions - both the outline of submissions and also the verbal submissions - and also all of the statutory declarations, it is apparent that the employees (a) have been consulted, and (b) would not be disadvantaged by the issuing of the order with respect to their terms and conditions.

PN109

The nominal expiry date of the Voyages Hotels and Resorts (Northern Territory) Workplace Agreement 2008 is 15 August 2011. With respect to section 319(3) subsections (d) and (e), it was Ms West's view, as set out in her statutory declarations, that it was crucial for all of the employees to have uniformity of working conditions under the one agreement. The result of this not occurring was said to be that there could be rifts that developed between employees and also between management and employees, with a resultant loss of staff.

PN110

This would have a negative effect on the operation of the resort, which is located in an extremely remote location, particularly as all of the employees live and work very closely together. I think Ms West said "intimately", and I thought "Mm, maybe I might rephrase that to 'very closely'."

PN111

With respect to the public interest, it was submitted that the application does not offend the public interest.

PN112

Having taken into account all of the required matters, I have decided to issue the order sought. It will come into effect from today's date, which is 9 February 2010, pursuant to the requirements of the Fair Work Act 2009. This matter is now adjourned. Thank you.

<ADJOURNED INDEFINITELY [2.01PM]

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #A1 STATUTORY DECLARATION OF HELEN WEST DATED 23/12/2009 PN63
EXHIBIT #A2 STATUTORY DECLARATION BY HELEN WEST DATED 02/02/2010 PN66
EXHIBIT #A3 STATUTORY DECLARATION OF HELEN WEST DATED 08/02/2010 PN74
EXHIBIT #A4 STATUTORY DECLARATION OF BRIE MUSTON DATED 08/02/2010 PN75
EXHIBIT #A5 OUTLINE OF SUBMISSIONS DATED 09/02/2010 PN81