AG2011/11002, Transcript of Proceedings [2011] FWATrans 824 (8 August 2011)

TRANSCRIPT OF PROCEEDINGS

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Fair Work Act 2009 58857-1

DEPUTY PRESIDENT SAMS

AG2011/11002

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

Application by Australasian Meat Industry Employees Union, The-New South Wales
Branch
(AG2011/11002)





Sydney

9.33AM, TUESDAY, 2 AUGUST 2011

PN1

THE DEPUTY PRESIDENT: Could I have the appearance.

PN2

MR C. DONZOW: If it pleases your Honour, Donzow, initial C. I appear for the Australasian Meat Industry Employees Union, New South Wales branch. With me I have MR P. USHER, who is the branch secretary.

PN3

THE DEPUTY PRESIDENT: Yes. All right. Well, I note that this is an agreement for the union's officers and officials.

PN4

MR DONZOW: Yes.

PN5

THE DEPUTY PRESIDENT: It's a little bit like negotiating with yourself, isn't it?

PN6

MR DONZOW: It is, your Honour, and I'd really seek your indulgence as this is new territory as far as I'm concerned.

PN7

THE DEPUTY PRESIDENT: I was going to ask that. Is this the first enterprise agreement that has been negotiated for the unions?

PN8

MR DONZOW: It is, your Honour. Basically the reason we needed to take this course of action was in relation to the Workers Compensation Act. We recently had an incident where one of our officials was off for a short period and the insurance company only paid 80 per cent of the official's rate, given that we had no registered agreement or award to refer back to. Under the Act, unless you have a registered agreement or an award that you're a respondent to, then they're only liable to pay 80 per cent of the rate.

PN9

THE DEPUTY PRESIDENT: What rate?

PN10

MR DONZOW: Well, this is it. They've paid 80 per cent of the rate that we proposed. Again, you know, that's the conflicting part of it, so to overcome this situation, we - amongst ourselves - agreed to draft up a fairly basic sort of agreement mainly in relation to rates of pay; so we overcome that legal loophole, so to speak.

PN11

THE DEPUTY PRESIDENT: Yes. I see those rates are on page 16 of the agreement. Are they the actual rates that are paid?

PN12

MR DONZOW: Yes, your Honour.

PN13

THE DEPUTY PRESIDENT: Of course the Act envisages that there's an exercise of testing the agreement against the relevant award.

PN14

MR DONZOW: Again, we've got a difficulty because I'm not aware of any award that - you know, we put our mind to it when we were doing the application in relation to, you know, what we could test it against, but I'm not aware of any award. The interesting part of this, too, was when the insurance company notified us of their decision in relation to that part of the legislation, I contacted Unions New South Wales to get some guidance from them in that respect. Apparently they don't have a registered agreement either, so I don't know how, you know, they're operating, but - yes, as to how we test it against a relevant award or not.

PN15

I recall when I first became an official our wage rates - and this is going back some time - were loosely based against the Meat Processing Award. It used to be the A-grade storeman rate plus 25 per cent, I think. That's how they used to loosely do their wage rates back then. As to whether we actually used or qualified our other conditions, I don't think they were qualified against the MP Award. They were just for the purpose of wages at that time. Since then, you know, we've never really had any other agreement. Any of the conditions are generally governed by the committee of management, anyway, and any changes normally have to go through the committee of management process. The committee of management actually has the power in relation to setting rates of pay.

PN16

You'll probably notice that there is reference to our rules in the agreement and I think we needed to do that because I didn't know whether the agreement could override our rules or vice versa; so effectively we've put in there that, you know, we're also governed by the rules of the union as well as the conditions contained in the agreement.

PN17

THE DEPUTY PRESIDENT: Yes.

PN18

MR DONZOW: We've tried to cover it as best we can and stay within, you know, the confines of the guidelines.

PN19

THE DEPUTY PRESIDENT: Well, there is a provision in the Act which speaks of the better off overall test not being met. I'm not sure it was envisaged that it extended to the point of where there was really no ability to conduct a better off overall test.

PN20

MR DONZOW: Yes.

PN21

THE DEPUTY PRESIDENT: But it may be that that section could be utilised creatively so as to get around any difficulty, although I don't envisage that there should be. I do remember in my earlier life we notionally at Labour Council referred to the Clerical Award. If that was so, then these rates would be significantly in advance of that award.

PN22

MR DONZOW: Well, your Honour, I do recall that at one time there was a Trades Hall agreement that was in place, but I'm not sure whether that simply covered clerical staff that were employed by unions within the Trades Hall. There was a Trades Hall agreement in operation at one point in time. I think I've still got a copy of the old one somewhere in the office, you know, but that purely related to clerical - - -

PN23

THE DEPUTY PRESIDENT: It might have only covered Ms Morrison.

PN24

MR DONZOW: Well, yes. Like I said, it's an unusual sort of set of circumstances and, as I say, you know, I'd seek your indulgence to see how we could, you know, get around this. I think the agreement basically meets all the requirements under the legislation. There's a flexibility provision in there.

PN25

THE DEPUTY PRESIDENT: Yes.

PN26

MR DONZOW: I think it would meet the BOOT test, as such.

PN27

THE DEPUTY PRESIDENT: Yes.

PN28

MR DONZOW: You know, like I said, all the normal conditions of employment are covered under the arrangement. It's just like I said, you know, we needed some legal instrument in relation to getting over this difficulty with our insurer.

PN29

THE DEPUTY PRESIDENT: Yes, I understand. All right, well, I'll have a closer look at it, but I'm sure I can find something to creatively ensure that the agreement is approved.

PN30

MR DONZOW: That would be much appreciated.

PN31

THE DEPUTY PRESIDENT: I note that it's to cover six employees. Is that the extent of your organising and industrial staff, is it?

PN32

MR DONZOW: At the moment, yes.

PN33

THE DEPUTY PRESIDENT: And so do I take it that the clerical staff, such as they might be, are covered by the Clerks Award?

PN34

MR DONZOW: Yes, they are covered on the Clerks Award.

PN35

THE DEPUTY PRESIDENT: Yes. The agreement is only to apply for 12 months?

PN36

MR DONZOW: Yes, simply for the basis - like, we may have to seek to amend it in relation to wage movements, so we can keep it relevant.

PN37

THE DEPUTY PRESIDENT: Yes.

PN38

MR DONZOW: That's why.

PN39

THE DEPUTY PRESIDENT: Yes. Well, that's certainly permitted. All right, well, to the extent necessary I will approve an agreement to be known as the Australasian Meat Industry Employees Union New South Wales Branch Enterprise Agreement 2011. I note the unusual circumstances that arose in respect to the creation of the agreement and the basis for it. I also note that it is unlikely that there is a relevant award that would be able to be compared to the agreement in terms of the better off overall test.

PN40

In any event, if one takes a general view, clearly the rates of pay under the agreement are in excess of what might be said to be generally related awards or modern awards. I also note the agreement has been approved by the employees in a vote for its approval. Accordingly I shall approve the agreement and, pursuant to section 54 of the Act, the agreement shall apply from 9 August 2011 and have a nominal expiry date of 9 August 2012. I shall issue a short decision in due course, but the union can be assured the agreement has been approved by Fair Work Australia effective from that prospective date. I now adjourn.

PN41

MR DONZOW: Thank you, your Honour.

<ADJOURNED INDEFINITELY [9.43AM]