AG2010/21, Transcript of Proceedings [2010] FWATrans 675 (20 April 2010)

TRANSCRIPT OF PROCEEDINGS

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Fair Work Act 2009 25256-1

COMMISSIONER CLOGHAN

AG2010/21

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

Application by Oasis Enterprise International Pty Ltd
(AG2010/21)





Perth

10.30AM, TUESDAY, 6 APRIL 2010

PN1

THE COMMISSIONER: Mr Sharma, you are representing the applicant?

PN2

MR S. SHARMA: Yes, I am.

PN3

THE COMMISSIONER: Just for the record could I say that this application was first filed on 5 January pursuant to section 185 of the Fair Work Act, seeking approval of a proposed enterprise agreement. I should also note for the record that I received a further application this morning at approximately 10 a.m. which is essentially a duplication with some amendments to the application that was filed on 5 January.
Mr Sharma, if I could just run through a number of issues in relation to your application and I have had the opportunity of briefly reading it this morning after it was tendered in the Registry and I will look at it in conjunction with the application that was filed on
5 January. As you know in the conference I said to you there was a number of blanks in relation to the application. Have you got the application in front of you.

PN4

MR SHARMA: Yes.

PN5

THE COMMISSIONER: I will just take you through it. If I take you to the first part which is in relation to 2.1, that question as part of the application says, "Please specify the date upon which the agreement was made." That is to say the date on which the voting process by which employees approved agreement. Now, the date that you provided this morning was 4 January 2010.

PN6

MR SHARMA: Yes.

PN7

THE COMMISSIONER: If I take you down to question 2.6 it says, "Please indicate the date on which the employer first requested the employees approve the agreement by voting for it." You have a date of 5 January.

PN8

MR SHARMA: They're both 4 January, it's a typing mistake.

PN9

THE COMMISSIONER: If I take you then to the next question which is 2.7. It says, "Please indicate the date on which the employer provided the last notice to employees under section 173(1) of the Act which is a notice to employees regarding representational rights which in lay terms means that employees can either represent themselves for the purposes of the enterprise agreement or alternatively engage a union for instance or engage a bargaining agent." You have put 18 January. Now, obviously you have given notification to employees after the date that they have approved it, which is 14 January.

PN10

MR SHARMA: May I see it?

PN11

THE COMMISSIONER: You can. Can I just say, Mr Sharma, your first application was filled with some gaps. This application has, if I can use that colloquial expression, plugs some gaps, but it's just inconsistent with not only the first application but is just factually impossible to happen. This application is to be declared as being true and correct. You cannot have a situation where employees approve of something on one date and then a later date for them to be asked to approve it and then a further date which says that they have been given notification to have representation. I think you should hear me through because it points to a determination which I have to make in relation to this application.

PN12

In relation to 2.9 over the page, the question says, "Please provide details of the total number of employees who cast a valid vote in relation to the proposed agreement." Your response is, "None of the employees to be covered by this proposed agreement have opposed it." That doesn't answer the question. If I move on to 2.10, the question is, "Please provide details of the number of employees who voted in support of the proposed agreement," and you say, "All 80 or so have supported this agreement." If there was a ballot conducted then it is just a requirement to put a number in there.

PN13

If I then take you to 2.23. The answer you have provided this morning, that satisfies the Tribunal. If I now take you to 2.24 which says, "Please identify the term of the agreement which specifies a procedure for FWA or another independent person to settle disputes about matters arising under the agreement." If I take you to 8 of the agreement which is the dispute settling procedure, it specifies, and I have gone through it, it specifies that, "If the dispute cannot be resolved at the workplace level within 14 days the dispute shall be referred for independent mediation or conciliation." That doesn't tell me the procedure, it just says it will be referred to independent.

PN14

Can I indicate to you, and this is in no way binding on this application, but a number of other employers have suggested that this Tribunal be the independent conciliator or mediator. I emphasise that that is not binding on you, but I point out to you that there needs to be a process. It is quite possible for you to nominate your next door neighbour as the person to be the independent person in these, there is just no process, that needs to be addressed. If I now go on to 2.25 in your application, it says, "Does the term identified in 2.24 allow for representation of employees covered by the agreement for the purposes of the dispute settling procedure." Mr Sharma, there is no clause in there that enables employees to have representation in the dispute settling procedure. The answer that is provided here, unless you can convince me to the contrary, your answer is inconsistent with the provision in the clause in the agreement.

PN15

If I could now take you over the page to 2.30. It says, "Does the agreement cover shift workers?" On this application you have said, "Yes," and you refer to section 9. Section 9 refers to the types of employees and it defines full time, part time or casual employees, it makes no reference to shift workers, and I should point out that in your original application you said that there was no shift workers covered by the agreement. If I take you over the page to part 3 and in particular 3.3, the question asked is, "Does the agreement contain any terms or conditions of employment that are less beneficial than any of the terms and conditions contained in the reference instrument." The reference instrument is the Security Officers Award. It says, "Does it contain anything that are less beneficial," and you have now put, "No," in your answer this morning whereas on 5 January you put, "Yes." Now, can I point out that there are a number of conditions in this agreement that are less beneficial than what is contained within the Security Officers Award.

PN16

I do not propose to go through them with you, but I at the end of this hearing will recommend that you adopt a course of action. But your answer this morning is inconsistent with the answer that you provided on 5 January and can I point out that your answer on 5 January was correct. If I take you now down to 3.5, the question is, "If the answer to 3.3," which you have put is, "No," when it should have been, "Yes," consistent with your original application and consistent with the facts, you are required to set out in this application those provisions which you think are beneficial and on balance are of greater benefit to employees, and you have put, "Not applicable." I can suggest to you that you actually re-look at those provisions and answer them consistent with what is contained both in the award and what is contained within the proposed agreement.

PN17

Can I suggest to you that you need to pay greater attention to the provisions in the award which relate to both hours, overtime, shift work, weekend work and probationary employment. If you give greater attention to that I think you will find that you are able to provide an application to the Tribunal which is consistent with the facts in both of those agreements. I do that by way of assistance to you, Mr Sharma, but on the basis of both applications which you have provided to the Tribunal and the material contained in those informations, I have no course of action other than to not approve the proposed enterprise agreement as you have submitted it. Can I suggest that for your own benefit and to save you time in particular, if you are seeking to have this agreement approved, I suggest that you actually get advice either from an employer's organisation or a number of people who provide industrial advice in relation to this application.

PN18

The purpose of the conference was to indicate to you that there were a number of, if you like, holes in your original application. I am afraid that your subsequent application has not only failed to address some of those applications or some of those holes, but also has provided further information which, as I say, does not marry up with the facts contained in both the award and the agreement. Now, Mr Sharma, I have spoken for some time and it's been necessary to do that. I will give you the opportunity to speak, but as I have indicated to you I have no course of action other than not to approve the application. Is there anything you wish to say, Mr Sharma?

PN19

MR SHARMA: The course of action from now on from ourselves to try and get this application amended and re-submitted. When can we do it?

PN20

THE COMMISSIONER: I suggest you take some advice. When the application comes in the second time it may not come to me. I can ask the Registry to have it allocated to me and it may be allocated to me, if that is the case I will bring it on as expeditiously as I can, but can I again emphasise to you that the Tribunal is not intended to hold these processes up but it must deal with the application on the facts that it receives and for that reason I suggested to you that you may need to get, if I can describe it, expert advice in relation to this. It can only assist you in having the application heard again and approved which I'm sure is your wish.

PN21

MR SHARMA: Absolutely. Thank you.

PN22

THE COMMISSIONER: Thank you.

<ADJOURNED INDEFINITELY [10.45AM]