AG2014/8289, Transcript of Proceedings [2015] FWCTrans 187 (31 March 2015)

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PN1

THE VICE PRESIDENT: Hello.

PN2

MR COYNE: Yes, hello, First IR.

PN3

THE VICE PRESIDENT: Hello, that's Mr Coyne, is it?

PN4

MR COYNE: That's correct.

PN5

THE VICE PRESIDENT: Hello, Shane, it’s Vice President Lawler from the Fair Work Commission. Thank you very much for accepting the call. This is a further hearing in matter number AG2014/8289. I note that we had a telephone conversation earlier on this afternoon, and that as a consequence of that conversation I have determined that the better way to proceed is to list the matter for hearing and to receive some submissions from you that can be recorded and turned into a transcript so that they're available to be relied upon by me.

PN6

I should note that this is in relation to an application for approval of an agreement that was filed in late November 2014. I had some concerns about whether or not the agreement passed the Better Off Overall Test and asked to have the agreements unit perform a BOOT analysis on it. They produced a document headed “Synopsis”.

PN7

I had also conducted on 14 January 2015 a brief hearing which you did not participate in because nobody called you, notwithstanding that you had been identified as the representative on the file and notwithstanding that you had conversations with my then Associate Mr Bryant, and I recorded with you then and repeat now my apologies for the fact that you were not included when indeed clearly you should have been.

PN8

So the concerns were first raised in the hearing with the wife of the proprietor or one of the proprietors, Mrs Rasheed, on 14 January and then the BOOT team produced their synopsis subsequent to that. On 20 February 2015 your firm, yourself in particular, submitted an application responding to the issues that had been raised. That document quite legitimately takes issue with the failure to include you in the hearings and it also identifies errors in the synopsis document produced by the BOOT team, and identifies errors in the issues that I raised with the principal of the company, and correctly so.

PN9

I am satisfied that you have completely answered all of the concerns save for one, which is that if one hypothesises a four-week period in the high workload portions of the year on the relevant station and employees were to exercise the right under clause 31.4 of the award to request payment for overtime, that it was conceivable in those circumstances that the employees could be entitled to more under the award than what they would be paid under the agreement.

PN10

If I could ask you to confirm that you have taken instructions from your client and there has never been an instance ever of an employee exercising that right under clause 3.14 of the award to request payment for overtime.

PN11

MR COYNE: Yes, that's correct, your Honour. Sorry.

PN12

THE VICE PRESIDENT: Yes, and then secondly that your firm has had an involvement in the preparation of enterprise agreements for a number of large agricultural operations in the Northern Territory like the property in the subject application, and you are unaware of any employee in relation to any of those clients ever exercising the right under clause 31.4 of the award to request payment for overtime.

PN13

MR COYNE: That's correct, your Honour, and that's why I specifically identified a number of enterprise agreements that are structured in the same way for those particular clients in the form F17 and I think also in the form F16.

PN14

THE VICE PRESIDENT: Thank you, and then thirdly, in an earlier life you worked as an inspector and you had occasion in that job to inspect the books of large pastoral operations in the Northern Territory on a very regular basis, and you don't recall ever seeing an entry in the books that indicates an employee had made a claim of the kind that 31.4 of the award allows for.

PN15

MR COYNE: Yes, that's correct, your Honour. I routinely did inspections under the then - a previous iteration of the Fair Work ombudsman, and my role was to travel throughout the cattle stations in the Northern Territory exercising the relevant powers, and that's correct.

PN16

THE VICE PRESIDENT: Thank you.

PN17

MR COYNE: It simply didn't happen, and one of the problems of course is that even if someone does make a claim it has to be then dealt with on its merits under the award, whereas in the enterprise agreement it’s already a factor in the daily rate, so there is actually no need for a claim to be made.

PN18

THE VICE PRESIDENT: Yes. Well, I'm satisfied that first of all the operators of this business, Mrs Rasheed and her husband, and your firm have been acting in complete good faith here. I'm satisfied that Mrs Rasheed is involved in a business that has no interest in exploiting its employees and indeed prides itself on treating its employees well relative to how employees are treated in the industry.

PN19

MR COYNE: Yes, I accept that. That's true.

PN20

THE VICE PRESIDENT: And in particular I accept that she and her husband have a practice of keeping employees on and paying them their full wages even during those parts of the season, like the wet season, when the employees are not able to do any work and where on other stations they're simply laid off for that period.

PN21

MR COYNE: It goes further than that, your Honour. There's even a provision in these agreements for inclement weather akin to what goes on in the construction industry, which hitherto is unheard of in this industry. It’s certainly not included in the award.

PN22

THE VICE PRESIDENT: Yes. So the upshot is this, whilst it seems to me that when one applies the terms of the legislation strictly, it is possible to hypothesise circumstances where in the peak working periods on this station an employee could work a level of overtime that, if they exercise the right under clause 31.4 to claim payment, would see them earn over a four-week period more under the award than what they would under this agreement, notwithstanding that there’s the offsetting benefit of them being paid when they’re not working during the wet season, and that consequently technically the BOOT is not satisfied such as to require an undertaking, but you have submitted that if such an undertaking - if the Commission concluded that position obtained, that there ought not be any undertaking required and instead the agreement ought be approved as being in the public interest.

PN23

MR COYNE: That's correct, your Honour.

PN24

THE VICE PRESIDENT: Notwithstanding that the BOOT is technically not satisfied in that rather contrived way that I have described - “contrived” is perhaps the wrong word - hypothetical way that I have described.

PN25

MR COYNE: I know exactly what you're talking about.

PN26

THE VICE PRESIDENT: A hypothetical way that doesn't reflect the reality of what occurs on the ground, and I am persuaded that I should take that course and approve the agreement without requiring an undertaking on the basis that it’s in the public interest.

PN27

MR COYNE: Yes.

PN28

THE VICE PRESIDENT: And I wanted to have available some material upon which I could act, and you have provided that in the answers that you have given today.

PN29

MR COYNE: Thank you, your Honour.

PN30

THE VICE PRESIDENT: Okay, so there's nothing further I think required from you. The agreement will be approved. No undertaking will be required, but the agreement decision will note that although it is possible to construct an hypothetical example where an employee would be worse off, that does not reflect reality, and that there is a public interest in approving this agreement, and that public interest is driven by what you have said about the realities on the ground.

PN31

MR COYNE: Yes.

PN32

THE VICE PRESIDENT: Including agreements that have been approved for other stations, and I think you specifically referred to an agreement approved by Sams DP on that public interest basis.

PN33

MR COYNE: That's correct. In fact I can give you the reference in that particular matter, your Honour. It was matter 2010/FWAA9701 and the matter was Curtin Springs Station enterprise agreement 09. It was done under the auspices of this Act.

PN34

THE VICE PRESIDENT: Yes, thank you.

PN35

MR COYNE: So if that's of any assistance to you, where he makes the point that having heard the submissions about the way - almost to use the same words as yourself about the facts on the ground, he says that given the nature of the employment, he could satisfy it and it wouldn't be contrary to the public interest.

PN36

THE VICE PRESIDENT: Yes. I certainly am persuaded that same approach ought be taken. Thank you very much, Mr Coyne, and apologies again for firstly the delay and secondly the suboptimal performance in this organisation in the assessing of the application.

PN37

MR COYNE: Well, all’s well that ends well, your Honour, so thank you for dealing with this matter in the pragmatic way that you've chosen to, and I'll be delighted to pass that on to my client.

PN38

THE VICE PRESIDENT: Thank you. All the best.

PN39

MR COYNE: All the best.

PN40

THE VICE PRESIDENT: That concludes the hearing. Good afternoon.

ADJOURNED INDEFINITELY [3.25 PM]

Fair Work Commission Transcripts

AG2014/8289, Transcript of Proceedings [2015] FWCTrans 187 (31 March 2015)