AG2010/5559, Transcript of Proceedings [2010] FWATrans 502 (29 March 2010)

TRANSCRIPT OF PROCEEDINGS

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Fair Work Act 2009 25237-1

DEPUTY PRESIDENT SAMS

AG2010/5559

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

Application by Metro Velda Pty Ltd
(AG2010/5559)





Sydney

11.02AM, MONDAY, 15 MARCH 2010

PN1

THE DEPUTY PRESIDENT: Yes, could I have the appearances.

PN2

MR G. SMITH: Graham Smith from the Meat Union.

PN3

THE DEPUTY PRESIDENT: Thank you, Mr Smith.

PN4

MR J. WAKE: Jack Wake from Metro Velda.

PN5

THE DEPUTY PRESIDENT: Thank you. Well, gentlemen, there is one glaring problem with the application which I discovered on reading the file this morning and that is, there is no employer declaration form 17 included in the file. Is that through some misadventure or just wasn't done?

PN6

MR SMITH: Sorry, which form was missing, sir?

PN7

THE DEPUTY PRESIDENT: It's form 17, it's a requirement for the employer to declare a whole range of matters including the number of employees who voted, the result of the ballot, how the ballot was conducted, the composition of the workforce, issues such as whether the better off overall test has been met and the national employment standards have been satisfied. It's about a four or five-page document that must accompany the application. So I take it from the silence that perhaps it was overlooked, was it?

PN8

MR SMITH: Sounds like it.

PN9

MR WAKE: That was definitely overlooked. The procedure was handled.

PN10

THE DEPUTY PRESIDENT: Yes.

PN11

MR WAKE: But the declaration I was not aware of.

PN12

THE DEPUTY PRESIDENT: Well this is the first occasion - and I've dealt with dozens and dozens of them. This is the first occasion where there has not been a form 17 employer declaration attached and I'm afraid it's a statutory requirement.

PN13

MR SMITH: Is there any leeway to allow the application to be amended, or is it - - -

PN14

THE DEPUTY PRESIDENT: Well, I very much doubt it because it's really the cornerstone of the application. Prior to this, that declaration would be sent to a unit in Fair Work Australia who would test it against all the various sections of the act, and in the absence of that I can't do that. I mean, I could take your assurances about certain things, but it's a very long document - well, not a long document, it's about four or five pages of questions that have to be answered. Now, I don't want to delay, necessarily, the agreement being ratified or approved by Fair Work Australia, but I really must have that document.

PN15

MR WAKE: We would undertake, of course, to provide that document.

PN16

THE DEPUTY PRESIDENT: All right. Well, you can download it from the Fair Work Australia's website and you'll immediately realise what I'm saying, how significant it is to the application and for Fair Work Australia to be conscious of all the matters that are contained in it. Could I also - but before we, sort of, deal with that, there are a couple of things I would want to ask you about the agreement itself. For example: one of the questions in the form is whether or not there is a flexibility provision and a consultation provision. I see there's a consultation provision but I don't see a flexibility provision.

PN17

If a flexibility provision is not provided for, then it is taken that the model flexibility term, which is in the Fair Work Act, is taken to be part of the agreement, and I have to note that in any decision I issue in the matter. That's just one point. The addresses of those that sign the agreement are also required by the regulations. I'm not clear as to how the - see what has to be done is to make a comparison to the relevant reference instrument, which I do note you refer to in the agreement, I think, as being the Federal Meat Industry Award. But hasn't there not been a modern award prescribed for the industry?

PN18

MR SMITH: Well, that is, now, the Meat Industry Award.

PN19

THE DEPUTY PRESIDENT: Okay. Well what has to happen is that there has to be a declaration by the employer that it meets the better off overall test, in compliance, by reference to that award, and then what is undertaken is a comparison. Now I presume, because the union is involved, that the rates are very much higher than the award. Am I right about that?

PN20

MR SMITH: No.

PN21

THE DEPUTY PRESIDENT: No? Did you say no?

PN22

MR SMITH: I did. No, they would pretty much be award rates.

PN23

THE DEPUTY PRESIDENT: Well - - -

PN24

MR WAKE: Well, they're actually higher than the award rates, Graham, aren't they?

PN25

MR SMITH: Well only two classifications. The vast majority of the plant is award rates.

PN26

THE DEPUTY PRESIDENT: Well, see that's the sort of declaration that has to be made, and it's not clear to me - are there to be adjustments during the course of the agreement? Wage adjustments? I see it's to apply to 2012.

PN27

MR SMITH: Yes, there are.

PN28

MR WAKE: The wage adjustment, as far as casuals are concerned - - -

PN29

MR SMITH: There is also as far as the labourers are concerned. I mean, the agreement in the rates of pay doesn't allow them to fall below any of the rates within the Meat Industry Award, so if the meat - - -

PN30

THE DEPUTY PRESIDENT: Well, does the agreement say that?

PN31

MR SMITH: Yes. So if the Meat Industry Award moves, then obviously those rates would have to move too.

PN32

THE DEPUTY PRESIDENT: I see, all right. Well, as I said, there has to be that form filed. Well, I think the best course is that - now when - so these rates, are they currently being applied?

PN33

MR SMITH: Yes.

PN34

THE DEPUTY PRESIDENT: All right, so there's no trouble if we delay the proceedings for a week or so while you get that form in?

PN35

MR SMITH: No, that's fine. No effect at all.

PN36

THE DEPUTY PRESIDENT: All right. Well, I was concerned that there might have been some issue of payment because of the rates, but if you say that they're relatively close to the award and they're already applying then that shouldn't be a problem. But I really do need that form 17, gentlemen.

PN37

MR WAKE: No, that'll be done.

PN38

THE DEPUTY PRESIDENT: All right. I note too that the union has sought to be a party to the agreement and that's form 22.

PN39

MR SMITH: Yes.

PN40

THE DEPUTY PRESIDENT: So that's all in order.

PN41

MR WAKE: I'm glad it is.

PN42

THE DEPUTY PRESIDENT: You see, what you, Mr Smith, have done is to attest to - - -

PN43

MR SMITH: The forms being correct, yes.

PN44

THE DEPUTY PRESIDENT: The information conveyed in form 17 filed by the employer is correct. So, on one view of it, it's a little hard to do that, is it not? You see at point 5, it says, "Have you read the statutory declarations lodged on behalf of the employer or employers?" You say yes, and, "Insofar as the matter is contained in the statutory declarations are within your knowledge, do you agree with the answers?" Well, you say yes.

PN45

MR SMITH: Hard to agree with the answers when they're not there.

PN46

THE DEPUTY PRESIDENT: Yes. I mean, if this had been a non-union agreement, I would have had no hesitation in rejecting it outright, but with the union involved I accept that it's been - - -

PN47

MR SMITH: Well, the forms have gone astray somewhere. The forms originally were all there, so I just don't know what's happened there.

PN48

THE DEPUTY PRESIDENT: All right. Well, if they've gone astray or if they can't be located then a new one should be lodged. Can you do that within seven days?

PN49

MR SMITH: Yes.

PN50

MR WAKE: Yes. Will do.

PN51

MR SMITH: Very good.

PN52

THE DEPUTY PRESIDENT: What about I list the matter next Tuesday. We'll do it by phone again. Are you both available next Tuesday?

PN53

MR SMITH: Yes.

PN54

MR WAKE: Yes I'm available, Jack Wake.

PN55

THE DEPUTY PRESIDENT: Thank you. Say around the same time?

PN56

MR SMITH: Yes, same time is good.

PN57

MR WAKE: 10.30?

PN58

THE DEPUTY PRESIDENT: But Tuesday?

PN59

MR SMITH: Yes.

PN60

MR WAKE: Yes.

PN61

THE DEPUTY PRESIDENT: It's 10.30 your time, isn't it?

PN62

MR WAKE: I would be our time. Sorry, 11 o'clock your time.

PN63

THE DEPUTY PRESIDENT: Yes, that's fine. All right, I'll list this matter again for hearing on Tuesday, 23 March, at 11 am Sydney time, and noting in the interim that a form 17, employer's declaration, is to be filed to ensure that there has been compliance with all of the requirements of the act. Thank you, gentlemen.

PN64

MR SMITH: Thank you very much.

PN65

THE DEPUTY PRESIDENT: I'll talk to you again next week, I now adjourn.

PN66

MR SMITH: Thank you.

PN67

MR WAKE: Bye.

<ADJOURNED INDEFINITELY [11.12AM]