AG2011/11493, Transcript of Proceedings [2011] FWATrans 1011 (14 September 2011)

TRANSCRIPT OF PROCEEDINGS

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Fair Work Act 2009 62797-1

SENIOR DEPUTY PRESIDENT ACTON

AG2011/11493

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

Application by Zezt Pty Ltd
(AG2011/11493)





Melbourne

11.35AM, FRIDAY, 9 SEPTEMBER 2011

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

PN1

THE SENIOR DEPUTY PRESIDENT: Good morning. It's Senior Deputy President Acton here. We've got Ms McLagan.

PN2

MS K. McLAGAN: Yes.

PN3

THE SENIOR DEPUTY PRESIDENT: And you have with you MR D. KENWORTHY and MR S. REDMAN, do you? Is that right?

PN4

MS McLAGAN: Yes, I apologise, I have the end of a cold and my voice disappears occasionally.

PN5

THE SENIOR DEPUTY PRESIDENT: Okay. I've listed this matter because I've got a few issues with the agreement and was just wondering about the process. The F17 suggests that the employees were initially asked to vote on it on 4 July and then no-one voted. Then the employees requested some amendments and those were made and then there was another voting. Are you able to enlighten me on the dates that all of this occurred, Ms McLagan?

PN6

MS McLAGAN: We will have to check the dates but I thought we set out the date of the second voting there. I apologise if we didn't.

PN7

THE SENIOR DEPUTY PRESIDENT: I understand the second vote - you said they were asked to return the vote slip by the 13th and the agreement was made on the 14th. What I'm unclear of is what happened between 4 July and when they were asked. What dates were things done on? When did the employer approach the other employees to say, "How come no-one has voted?"

PN8

MS McLAGAN: The employer approached the employees on the 4th, when no-one turned up after the vote.

PN9

THE SENIOR DEPUTY PRESIDENT: Then what happened?

PN10

MS McLAGAN: Then after that we made some alterations to the document and we put it on the board for them all to be able to see it and circulated it with them.

PN11

THE SENIOR DEPUTY PRESIDENT: So when did you make the alterations to the document, what date?

PN12

MS McLAGAN: That was given to them on 7 July.

PN13

THE SENIOR DEPUTY PRESIDENT: On 7 July. So they were given the agreement on 7 July. How were they given the agreement?

PN14

MS McLAGAN: In the shed were they work, on the board, and they were all told about it there.

PN15

THE SENIOR DEPUTY PRESIDENT: They were given voting slips. When was that done?

PN16

MS McLAGAN: That was done on the 7th.

PN17

THE SENIOR DEPUTY PRESIDENT: Right.

PN18

MS McLAGAN: They were given them on the 7th to allow them to decide what they wanted to do.

PN19

THE SENIOR DEPUTY PRESIDENT: They were told, according to this, that they could return the slip by post or vote at the admin office prior to 12 noon on the 13th. Is that right? Yes?

PN20

MS McLAGAN: Yes, your Honour.

PN21

THE SENIOR DEPUTY PRESIDENT: I can't hear you. You're just going to have to speak up, I'm afraid. I'm just wondering whether that complies with the Act because they didn't technically have the agreement until 7 July and they had to vote by 13 July. So that wouldn't seem to meet the seven days, would it?

PN22

MS McLAGAN: I think it's seven.

PN23

THE SENIOR DEPUTY PRESIDENT: So we don't count the first day. The 8th is one; 9th, two; 10th, three; 11th, four; 12th, five; 13th, six.

PN24

MS McLAGAN: I counted the first day.

PN25

THE SENIOR DEPUTY PRESIDENT: You've counted the first day. Let me see, what does the Act say. So when did the voting process start?

PN26

MS McLAGAN: It started on the first agreement given to them but none of them turned up for that process.

PN27

THE SENIOR DEPUTY PRESIDENT: Yes, I know but we can't count that because the agreement was changed. So the agreement they were actually voting on - - -

PN28

MS McLAGAN: As requested by them.

PN29

THE SENIOR DEPUTY PRESIDENT: So they had to have the agreement during the seven-day period ending immediately before the start of the voting process. When did the voting process start; after the agreement of 7 July?

PN30

MS McLAGAN: Yes, it started with - they were given that with the - given their ability as to when they wanted to put the slip in or how they wanted to.

PN31

THE SENIOR DEPUTY PRESIDENT: Your F17 is not accurate. Question 2.2 says:

PN32

Date on which voting for the agreement commenced was 4 July.

PN33

But it can't have been because the agreement they were required to vote on wasn't actually put out by you until 7 July.

PN34

MS McLAGAN: Right.

PN35

THE SENIOR DEPUTY PRESIDENT: So I think you need to look at whether you've met the requirements of the Act in terms of access to the agreement before the vote was taken. All right? It may be that you have to do the voting again and make another application but I should raise some issues with you, if you have to do that, that you might want to look at when you are looking at this issue and which, in any instance, even if this is a valid application, I would need to have addressed in respect of this application.

PN36

MS McLAGAN: Yes.

PN37

THE SENIOR DEPUTY PRESIDENT: For example, you say that the employees are covered by the modern Manufacturing and Associated Industries and Occupations Award 2010. Is there a NAPSA that also applies to them in the transitional period - a state award? What were they covered by prior to 1 January 2010?

PN38

MS McLAGAN: Fibreglass and Plastics Award.

PN39

THE SENIOR DEPUTY PRESIDENT: Was there any enterprise agreement, a collective agreement, covering them? Yes/no?

PN40

MS McLAGAN: (indistinct) agreement.

PN41

THE SENIOR DEPUTY PRESIDENT: No. So is the Fibreglass and Plastics Award a state award?

PN42

MS McLAGAN: We're not certain on that, we think it was a federal award.

PN43

THE SENIOR DEPUTY PRESIDENT: Because you're aware of the transitional provisions in the Manufacturing Award, the 2010 award. So I need to consider how they're transitioning up or down to the modern Manufacturing Award rates. Are you aware of that?

PN44

MS McLAGAN: No, I'm not aware of what exactly you're referring to at the moment. I would have to look at that.

PN45

THE SENIOR DEPUTY PRESIDENT: Can you look at that. That is issue is dealt with in question 3.2 of the form F17. You just repeat the Manufacturing Award 2010 but I think you need to look at whether there was any pre-reform awards or notional agreements preserving state awards which were relevant.

PN46

MS McLAGAN: Yes.

PN47

THE SENIOR DEPUTY PRESIDENT: And look at the transitional provisions in the modern Manufacturing Award. You also as part of this deal with the issue of whether there's anything less in the agreement than in the modern award, and you talk about no penalty rates, et cetera. Of course there's also allowances and so on in the modern award. I would actually, in answer to question 3.4 in the form F17, need a list of all the clauses in the modern Manufacturing Award that are not included in the agreement and then the items in the agreement that mean the employees will be better off overall so I can be satisfied that the BOOT test is met. A sort of generic reference is not sufficient for me - a generic reference of, for example, penalty rates. I need to be clear exactly what they're not getting and what they're getting in return. All right?

PN48

MS McLAGAN: Right.

PN49

THE SENIOR DEPUTY PRESIDENT: You make reference to the trades assistant and the level 1 and level 2 shift managers being comparable to certain classifications in the modern Manufacturing Award. Am I to assume that the classifications in the modern Manufacturing Award of which you compare them that a trades assistant, for example, in your agreement has the same definition that is attached to the relevant classification in the modern Manufacturing Award, which is - if I just turn it up - you say the offsider - I think you probably mean the trade assistant - is a C13 level - - -

PN50

MS McLAGAN: Yes.

PN51

THE SENIOR DEPUTY PRESIDENT: - - - in the modern Manufacturing Award. Am I to understand that the definition of a trade assistant in your agreement is the same classification definition as a C13 in the modern Manufacturing Award?

PN52

MS McLAGAN: Yes, the clients are saying that that's how they interpret the way they were working with it.

PN53

THE SENIOR DEPUTY PRESIDENT: Therefore, for example, a level 1 shift manager you've said is a level C7 in the modern Manufacturing Award. So if I was to look at what the level 1 shift manager does, it would be exactly the same as the definition of what a level C7 classification does. Is that right?

PN54

MS McLAGAN: They think it's based on that, they're saying, because that's what level they thought they were at when they were working on the wages that they've been paying them.

PN55

THE SENIOR DEPUTY PRESIDENT: You see, the difficulty I have is there's no definition in the agreement of what a trades assistant does or what a level 1 shift manager does or what a level 2 shift manager does. In seeking approval, you've sought to say that they're the same as a C13, C7 and C5 classification in the modern Manufacturing Award. So if there is any dispute in the future about whether these people are appropriately classified or whether they're doing more than, for example, a C13, we would be able to go to this transcript and say, "No, the trades assistant is defined exactly the same as the C13 classification in the modern Manufacturing Award." Is that right?

PN56

MS McLAGAN: I will just get instructions. When they worked out who was being paid under the award, that's what they considered the people were sitting at level.

PN57

THE SENIOR DEPUTY PRESIDENT: If you're able to get past the procedural issues in respect of whether the agreement has been properly made, you may wish to consider an undertaking that the definitions of a trade assistant is the same as the definition of a level C13 in the modern Manufacturing Award, and similarly a level shift manager is the same as the definition of a C7 in the modern Manufacturing Award, and a level 2 shift manager is the same as the definition of a C5 level in the modern Manufacturing Award.

PN58

MS McLAGAN: Yes, I will consider whether we can do that, your Honour.

PN59

THE SENIOR DEPUTY PRESIDENT: This covers only full-time employees as I understand the coverage clause of the agreement.

PN60

MS McLAGAN: That's the intention. Anyone else who wouldn't be classified as a full-time employee wouldn't be able to work the roster system and would accordingly be still covered by the award.

PN61

THE SENIOR DEPUTY PRESIDENT: So of the seven employees who voted or are able to vote, are they full-time employees?

PN62

MS McLAGAN: The employees affected by the agreement, which were the full-time employees.

PN63

THE SENIOR DEPUTY PRESIDENT: So that is the seven, is it, employees who are able to vote?

PN64

MS McLAGAN: Yes.

PN65

THE SENIOR DEPUTY PRESIDENT: Do you have part-time employees in these classifications?

PN66

MS McLAGAN: Part-time employees? They have other employees who do completely different roles within the company, who are not involved in this as well.

PN67

THE SENIOR DEPUTY PRESIDENT: But are there part-time employees in the classifications of trade assistant level 1 shift manager and level 2 shift manager?

PN68

MS McLAGAN: Only trade assistant.

PN69

THE SENIOR DEPUTY PRESIDENT: How many of those would there be? How many part-timers?

PN70

MS McLAGAN: In the (indistinct) centre. There are other employees in the company who are not even involved in this area who are trade assistants.

PN71

THE SENIOR DEPUTY PRESIDENT: In this area are there part-time trade assistants?

PN72

MS McLAGAN: Yes.

PN73

THE SENIOR DEPUTY PRESIDENT: How many?

PN74

MS McLAGAN: Two to four.

PN75

THE SENIOR DEPUTY PRESIDENT: Two to four. Is there any casual employees?

PN76

MS McLAGAN: So the part-timers are casual.

PN77

THE SENIOR DEPUTY PRESIDENT: They're casual employees. What hours do they work?

PN78

MS McLAGAN: There's a variety of hours. It depends on demand for production. So sometimes they work eight hours, other times they work different levels of hours in a day.

PN79

THE SENIOR DEPUTY PRESIDENT: You need to look at question 2.9 on the form F17 because you've told me two things: (1) the agreement doesn't cover all the employees of the employer because there are some employees who work in other areas, and that's not dealt with in your response to question 2.9 and as you know under the Fair Work Act I'm required to be satisfied that the group was fairly chosen and if not all employees of the employer are covered, whether the group that is chosen is fairly chosen, including having reference to whether it's a geographical, operational or organisational distinct group. Your answer seems to only deal with this casual employee issue within the group of machine operators.

PN80

MS McLAGAN: Yes, your Honour.

PN81

THE SENIOR DEPUTY PRESIDENT: So you need to look at that issue. The other thing that I would need from you is this works a 12-hour roster, as I understand it.

PN82

MS McLAGAN: Yes.

PN83

THE SENIOR DEPUTY PRESIDENT: Seven days a week.

PN84

MS McLAGAN: Yes, 24-hour operation.

PN85

THE SENIOR DEPUTY PRESIDENT: Is that the way you currently work?

PN86

MS McLAGAN: Yes, your Honour.

PN87

THE SENIOR DEPUTY PRESIDENT: As I understand it, the employees rotate between sort of what might be called day shift and night shift.

PN88

MS McLAGAN: Yes, your Honour.

PN89

THE SENIOR DEPUTY PRESIDENT: So how long does it take them to rotate, what's the shift sort of cycle?

PN90

MS McLAGAN: It's what's known as a (indistinct) roster, your Honour, and they work a period all day, then a period of time off, then a period of all night, then a period of time off, which seemed to be a period of five days on, five days off, then five days on, five days off, four nights on, five days off, five days on - - -

PN91

THE SENIOR DEPUTY PRESIDENT: So there's a pattern to this cycle.

PN92

MS McLAGAN: There's a definite pattern, and within that pattern there's also sets so that there's an intent to ensure that they have two weekends every month off.

PN93

THE SENIOR DEPUTY PRESIDENT: So what I'm after is how long does it take for one cycle of the pattern to be completed before it's repeated again? Five weeks? Four weeks?

PN94

MS McLAGAN: It's approximately four weeks.

PN95

THE SENIOR DEPUTY PRESIDENT: Then what I need you to provide me is what each of the employees will earn under the agreement in comparison to what they would earn under the relevant modern award and, if it's relevant, state award or pre-reform federal award.

PN96

MS McLAGAN: Yes, your Honour.

PN97

THE SENIOR DEPUTY PRESIDENT: So I can compare what they're going to get under the agreement with what they're entitled to under existing or pre-existing awards. Are you clear on that?

PN98

MS McLAGAN: Yes, I am, your Honour.

PN99

THE SENIOR DEPUTY PRESIDENT: Okay, over that period. So there's a few issues I need you to come back to me on. How long do you think it might take you to do that?

PN100

MS McLAGAN: I would expect we will need at least a week to two weeks to work some of those things out.

PN101

THE SENIOR DEPUTY PRESIDENT: The first thing you obviously need to do is work out whether you've complied with the Act in terms of processing an agreement, and I'm obviously going to need some clarification on that. So I will adjourn this matter on that basis. Anything else you want to raise?

PN102

MS McLAGAN: Your Honour, will this be automatically relisted or what will - - -

PN103

THE SENIOR DEPUTY PRESIDENT: I will wait another sort of two weeks and hopefully you will provide me with all the material. If I'm satisfied with all of that, then of course I could just approve it, but if I'm not, then I will have to relist it for further questions, et cetera. Okay?

PN104

MS McLAGAN: When we've done the technical issue of the voting, do we direct it back to your attention for relisting or - - -

PN105

THE SENIOR DEPUTY PRESIDENT: No, you've got to make sure or the company's got to make sure they comply with the provisions of the Act about access to the agreement during the seven-day period and then when voting is allowed to commence in light of that. You know the relevant provisions of the Act; they're set out at sections 180, 181 and 182 of the Fair Work Act. So that's the procedural issues that I'm at this stage not satisfied about. My satisfaction obviously has been questioned by virtue of the fact that the employees weren't actually given the agreement until 7 July; that is, the agreement on which they voted. The earlier agreement can't count because it was amended.

PN106

MS McLAGAN: Yes, your Honour.

PN107

THE SENIOR DEPUTY PRESIDENT: All right. Anything else?

PN108

MS McLAGAN: No.

PN109

THE SENIOR DEPUTY PRESIDENT: I will adjourn this matter on that basis. Thank you.

PN110

MS McLAGAN: Thank you.

<ADJOURNED INDEFINITELY [12.01PM]