AG2010/15798, Transcript of Proceedings [2011] FWATrans 16 (14 January 2011)

TRANSCRIPT OF PROCEEDINGS

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Fair Work Act 2009 36818-1

COMMISSIONER DEEGAN

AG2010/15798

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

Application by OfficeMax Australia
(AG2010/15798)





Canberra

MONDAY, 10 JANUARY 2011

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

Continued from New

PN1

THE COMMISSIONER: Mr Arnold, could you just announce your appearance for the sake of the transcript.

PN2

MR I. ARNOLD: I appear for OfficeMax.

PN3

THE COMMISSIONER: Mr Arnold, I've gone through the agreement. I have one concern, and that's the position of casuals.

PN4

MR ARNOLD: Yes, Commissioner.

PN5

THE COMMISSIONER: I am concerned that there is a provision in the agreement which suggests that casuals that are engaged for a particular purpose won't get the 25 per cent loading; is that correct?

PN6

MR ARNOLD: Engaged for a specific purpose?

PN7

THE COMMISSIONER: Engaged for back to school.

PN8

MR ARNOLD: That surprises me because our back to school casuals are all taken on with the casual loading.

PN9

THE COMMISSIONER: Perhaps I just mis-read it in which case I would like to have it explained to me. Casual employment 14.3.4, "Except where employed specifically for the back to school period as outlined in 14.4 such a casual shall be paid no less than the current rates in accordance with their classification as set out, plus a 25 per cent casual loading." Now, that suggests that if they are employed for the back to school they won't be paid the 25 per cent loading, but if I'm reading it wrong please put me right.

PN10

MR ARNOLD: Certainly and I just explained to Tony that this agreement was put together by someone else who has gone on maternity leave, so I have had to go through the process of registering. But certainly my understanding is that all of our casuals, including our back to school casuals, are paid with a 25 per cent loading.

PN11

THE COMMISSIONER: Where it says under "Back to school" it says what back to school is about and then it says, "Where a casual employee is engaged for the back to school period they should be paid no less than the current rates in accordance with their classification as set out in the Storage Services and Wholesale Award." Am I to believe that what you're suggesting is casuals that are employed for the back to school time get the award rates, not the agreement rates?

PN12

MR ARNOLD: No, they're paid the agreement rates.

PN13

THE COMMISSIONER: Not according to this - have you got the agreement in front of you, Mr Arnold?

PN14

MR ARNOLD: I have, I'm just reading sub-clause 14.3.4.

PN15

THE COMMISSIONER: Yes. Then 14.4.2. They are the two that are of concern to me.

PN16

MR ARNOLD: I can understand your concern because it does appear to be a - I don't know it's actually a contradiction but it points in two different directions, doesn't it?

PN17

THE COMMISSIONER: No, it points in one direction as far as I'm concerned. What it says is, "Casuals who are employed during the back to school period as defined will get the Storage Services Award rate," not the agreement rates and that's what I need to know.

PN18

MR ARNOLD: No, interesting that because I do believe the contracts that are given to them specify that yes, it is the Storage Services and Wholesale Award, but with the 25 per cent loading.

PN19

THE COMMISSIONER: In that case you see I would have to go through the rest of the agreement to work out whether there are other things where casuals are worse off because in order to do the better off overall test I have to be assured that these people are better off than they would be under the award and if they are on the award rates I can hardly say they're better off.

PN20

MR ARNOLD: I understand that, yes.

PN21

THE COMMISSIONER: What else do casuals get under the agreement apart from the rates, the back to school casuals I'm talking about now?

PN22

MR ARNOLD: Yes, certainly my understanding is that they get everything that all the other casual employees get wherever they're employed by OfficeMax.

PN23

THE COMMISSIONER: As I said that last overall, this is not the no disadvantage test. I have to be sure that they are better off under your agreement than they would be under the award. Without going into every other clause of the agreement, and I will have to do that now that you've clarified - well, now if you do clarify those points for me and say well, back to school - - -

PN24

MR ARNOLD: I'll come back to you then, Commissioner, save you the effort of course. I don't want you to have to go through it all.

PN25

THE COMMISSIONER: That's all right, why don't you do that Mr Arnold, if you can either come back to me clarifying what the situation is. I mean I can take an undertaking if you do work out that I'm reading it wrong or it's not what's meant or whatever, if you can come back to me. Will you be able to get some advice from somebody fairly quickly?

PN26

MR ARNOLD: I certainly will, yes.

PN27

THE COMMISSIONER: As soon as you get back to me, if I'm satisfied with what you come back to me with then if it requires an undertaking then that's fine, all I need is an undertaking in writing. Otherwise I was quite happy with the agreement but that provision for casuals did jump out at me I'm afraid.

PN28

MR ARNOLD: No, I understand your concern and I'm very happy to track that down and find out the specific issue so that there isn't any doubt.

PN29

THE COMMISSIONER: Thank you very much. As soon as we get that sorted out I don't see any reason why once I'm happy about whatever happens to casuals then I should be able to approve the agreement but I will wait for you to come back to me.

PN30

MR ARNOLD: Yes, I think the issue here from my point of view is that there are really seven employees who are covered by this and I don't think they have taken on back to school - I'm not quite sure why that's there to be honest, but I'll check it all out.

PN31

THE COMMISSIONER: The thing is Mr Arnold, there might be seven current employees who are covered by the agreement but any casual that was taken on in the future for back to school duties is still somebody I have to take into account.

PN32

MR ARNOLD: Sure, (indistinct) suggesting we don't.

PN33

THE COMMISSIONER: Thank you, Mr Arnold, I'll adjourn.

<ADJOURNED INDEFINITELY [12.36PM]