AG2012/426, Transcript of Proceedings [2012] FWATrans 229 (9 March 2012)

TRANSCRIPT OF PROCEEDINGS

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Fair Work Act 2009 1032945-1

DEPUTY PRESIDENT SAMS

AG2012/426

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

Application by POAGS Pty Ltd
(AG2012/426)





Sydney

2.34PM, FRIDAY, 2 MARCH 2012

PN1

THE DEPUTY PRESIDENT: Could I have the appearances.

PN2

MR N. SAUNDERS: Thank you, your Honour. Mr Saunders for POAGS.

PN3

THE DEPUTY PRESIDENT: Thank you.

PN4

MR A. PORTELLI: If the tribunal pleases, my name is Portelli, initial A, on behalf of the National Union of Workers.

PN5

THE DEPUTY PRESIDENT: Thank you. Well, why should Fair Work Australia approve this agreement, Mr Saunders?

PN6

MR SAUNDERS: Thank you, your Honour. This is an application made under section 185 of the Fair Work Act for approval of a single-employer enterprise agreement. POAGS believes that all of the relevant requirements of the Act have been satisfied in relation to this application. The details of how that has been accomplished are laid out in the various papers before you, specifically the form 17, the employer's declaration. There are two specific comments I would like to make on the record. Firstly, there has been some correspondence between POAGS and the union in relation to this agreement, and the union has raised two issues; firstly, in relation to the BOOT.

PN7

The form 17 that has been lodged with the Commission and served on you contains a BOOT analysis of the agreement against the Road Transport and Distribution Award. There has been some discussion about whether that's the appropriate award to apply in the circumstance. In light of that discussion and the subsequent analysis against the Storage Services and Wholesale Award - that analysis was provided to the union and email to the tribunal on Monday, the 27th. I believe you have a copy of that, and I would like to tender that officially.

PN8

THE DEPUTY PRESIDENT: I'll mark the comparison to the Storage Services and Wholesale Award as exhibit 1.

EXHIBIT #1 COMPARISON BETWEEN PROPOSED AGREEMENT AND AWARDS

PN9

MR SAUNDERS: Thank you, your Honour. In relation to the BOOT, I note that it's open to you to find that the EA passes the BOOT in relation to both of those awards. It's certainly POAGS' position that the proposed agreement does satisfy the requirements of the BOOT in relation to both awards, and I would submit that it would be appropriate in this case to make that finding. The second point I wish to raise is in relation to the coverage of the proposed enterprise agreement. At present and at commencement, the agreement would only operate or be in operation in two of POAGS' sites around the nature; one in Western Australia and one in Queensland.

PN10

I would submit, however, that due to the wording of the EA, it could conceivably have national application, and that was simply the second point that had been discussed between myself and Mr Portelli from the union in relation to this application for approval. With that being said - - -

PN11

THE DEPUTY PRESIDENT: Well, did you come to any understanding about it?

PN12

MR SAUNDERS: We had a discussion and we understand that it will operate from the first day in those two sites, but conceivably it could operate on a national agreement. It was my understanding of the point we had reached. Mr Portelli, no doubt, will have his own comments to make in relation to that.

PN13

THE DEPUTY PRESIDENT: All right. The rates that I see at schedule 1 are first rate from 1 January 2012, and it subsequently increases on that date in the next three years. What are the percentages - - -

PN14

MR SAUNDERS: It's a 4 per cent increase per annum.

PN15

THE DEPUTY PRESIDENT: (indistinct) somewhere before.

PN16

MR SAUNDERS: Yes. For your information, your Honour, we have already commenced paying the 4 per cent; the 1 January 2012 rate.

PN17

THE DEPUTY PRESIDENT: That was my next question. Yes.

PN18

MR SAUNDERS: So that actually has been paid since 1 January 2012.

PN19

THE DEPUTY PRESIDENT: All right. There appears to be a considerably longer list of less beneficial terms than more beneficial terms, but I take it the rates are significantly in advance.

PN20

MR SAUNDERS: Which award were you looking at, your Honour.

PN21

THE DEPUTY PRESIDENT: Storage services.

PN22

MR SAUNDERS: Yes. It is, I guess, a very comprehensive analysis, but I draw your attention to the first line which is that at test time, the hourly rates are in the region of 33 to 48 per cent higher than any equivalent rate under the award.

PN23

THE DEPUTY PRESIDENT: Yes.

PN24

MR SAUNDERS: I would submit that would be a significant factor in the BOOT analysis and your decision one way or the other.

PN25

THE DEPUTY PRESIDENT: And what are the percentages if you apply the other award?

PN26

MR SAUNDERS: Very similar, I think, your Honour. 22 to 33 per cent higher. I'd also note that in relation to both - the agreement provides for a 35-hour week, whereas both awards provide for a 38-hour week.

PN27

THE DEPUTY PRESIDENT: Yes. Thank you.

PN28

MR SAUNDERS: Thank you, your Honour.

PN29

THE DEPUTY PRESIDENT: Well, Mr Portelli, I see that the union has filed a declaration supporting the approval of the agreement but noting those two matters in the statutory declaration that Mr Saunders has referred to. Are you content with those arrangements and understandings that you have with him about that?

PN30

MR PORTELLI: Yes, we are, your Honour. And if I may just briefly add I certainly take your Honour's point that there are a list of less beneficial terms when compared to the relevant award. There is also a considerable amount of matters that exceed the rights under the relevant award. There are also a number of matters that my friend has listed as less beneficial, namely around individual flexibility and facility provisions, that as your Honour may expect, the union doesn't necessarily see as less beneficial to working people. With that being said, your Honour, we don't seek to contest this application and we support it.

PN31

The two issues that we did have: firstly, around the relevant instrument for the purposes of the BOOT test; and secondly, around the coverage, have been met to our satisfaction. Unless there's anything else, your Honour, that you'd like from us, we would respectfully request that the application be granted if the tribunal pleases.

PN32

THE DEPUTY PRESIDENT: Yes. You've given notice that you wish to be covered by the agreement?

PN33

MR PORTELLI: Yes, your Honour.

PN34

THE DEPUTY PRESIDENT: Yes. Thank you. Well, having heard the submissions of both parties and noting in particular the unanimous support of all of the employees to be covered by the agreement and the involvement of the union in the negotiations for the agreement, I am satisfied that all of the requirements of the Act - in particular, sections 180, 186, 187, 188 - so far as relevant to this application have been met. I note that the agreement, even when tested against both awards referred to in the proceedings today, meet the better off overall test, and particularly I note the differential in wage rates applying and the 35-hour week, which is provided for under the agreement.

PN35

The agreement, I also note, provides for three four per cent increases - four four per cent increases during its nominal term on the anniversary of 1 January each year. The union has filed a declaration in relation to the application in which is supports the application and seeks to be covered by the agreement, and for the purposes of section 201(2) of the Act, I note that the National Union of Workers is to be covered by the agreement. Pursuant to section 54 of the Act, the agreement POAGS Pty Ltd Bulk and General Enterprise Agreement 2012 shall operate seven days hence, being 9 March 2012, and have a nominal expiry date of 31 December 2015.

PN36

I shall publish a short decision in due course but the parties can be assured that the agreement has been approved by Fair Work Australia. I note, Mr Saunders, that there are three other matters which might be said to have some relevance to the proceedings, all of which you have subsequently filed a notice of discontinuance in.

PN37

MR SAUNDERS: Yes, your Honour. They were the three applications for the termination of prior enterprise agreements that covered specifically the work in the Queensland site that will now be covered by this new enterprise agreement. The union indicated that their preference was not to terminate those agreements, to leave them on foot. I believe both parties recognise that all of the employees that would have been covered by those previous enterprise agreements - and the oldest of them dates from 1999 - would now be covered by the enterprise agreement that has been approved today. In light of the union's preference to not terminate those agreements, POAGS has decided not to press the issue and discontinue those applications for termination.

PN38

THE DEPUTY PRESIDENT: Mr Portelli.

PN39

MR PORTELLI: Yes, your Honour. We indicated that preference, and I was advised by Mr Saunders this afternoon that the company was now of the view that it no longer wished to press those applications.

PN40

THE DEPUTY PRESIDENT: All right. Well, there's very little I can say about it in light of the discontinuance notice that has been filed. But for the record, I formally discontinue matter AG2012/427, 429 and 428. The proceedings in those matters are concluded accordingly. Thank you. The matters are adjourned on that basis.

PN41

MR PORTELLI: Thank you.

PN42

MR SAUNDERS: Thank you, your Honour.

<ADJOURNED INDEFINITELY [2.46PM]

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #1 COMPARISON BETWEEN PROPOSED AGREEMENT AND AWARDS PN9