AG2015/2125, Transcript of Proceedings [2015] FWCTrans 230 (14 April 2015)

TRANSCRIPT OF PROCEEDINGS

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Fair Work Act 2009                                                    

COMMISSIONER ROBERTS

AG2015/2125

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

Application by Knightmoves Business Relocations Pty Ltd
(AG2015/2125)

Sydney

10.36 AM, TUESDAY, 31 MARCH 2015

PN1

THE COMMISSIONER: Good morning. I will take your appearance. Whoever is appearing for the company, just state your name and that you appear for the company.

PN2

MR D SCOTT: Yes, Commissioner, Dion SCOTT.

PN3

THE COMMISSIONER: Appearing for the company?

PN4

MR SCOTT: Appearing for the company, yes.

PN5

THE COMMISSIONER: It wasn't that hard. You still missed out 50 per cent of it.

PN6

MR SCOTT: Sorry.

PN7

MR S RIDLEY: Steve RIDLEY, appearing for the company.

PN8

THE COMMISSIONER: Thank you, sir. This is your application.

PN9

MR SCOTT: Yes.

PN10

THE COMMISSIONER: I take it that you are not very familiar with procedure, so I won't require you to stand when you speak to me or anything like that. It tends to put people off who are not used to the procedure. Can I presume that you are making your application pursuant to the relevant provisions of the Act and that you rely upon the documents that you've filed?

PN11

MR SCOTT: Yes, Commissioner.

PN12

THE COMMISSIONER: Okay. You have huge problems with the documents you've filed.

PN13

MR SCOTT: Okay.

PN14

THE COMMISSIONER: You have filed with the application a document headed "Enterprise Agreement", which doesn't have any name. Then, when queried by the registry, you filed a document styled "Knightmoves Business Relocations Employment Award". Which document do you say you put before employees?

PN15

MR SCOTT: The second one was put before the employees after we were notified ‑ ‑ ‑

PN16

THE COMMISSIONER: What is the first one?

PN17

MR SCOTT: The first one - a little bit of naivety - we sort of weren't aware of how far into an agreement we had to go.

PN18

THE COMMISSIONER: Sir, I'm not having a go at you.

PN19

MR SCOTT: Yes.

PN20

THE COMMISSIONER: I realise that this is new territory for you, but I have to point out the problems. Okay?

PN21

MR SCOTT: Yes.

PN22

THE COMMISSIONER: You can't just replace one voted upon document by another one.

PN23

MR SCOTT: Okay.

PN24

THE COMMISSIONER: Okay? The second document, the one styled an award - and it can't be an award, by the way - is incredibly more detailed than the original one. The original one bore no signatures, which is required by the Act.

PN25

MR SCOTT: Yes.

PN26

THE COMMISSIONER: That alone is deadly. There is no real evidence about the service of the notice of employee representational rights on employees. I have been through the agreement, or what you style as the award, the second document. I don't know where you have got it from because it refers to the Industrial Relations Act 1996, which there have been two Acts since then.

PN27

MR SCOTT: Yes.

PN28

THE COMMISSIONER: So if it is seeking to apply that Act, you have a problem. Questions like in 24.1 of the second document, you provide that an employee can be terminated on one week's notice. No can do. The National Employment Standards provide graded notice. At 29, you provide that an employee can work for a continuous period amounting to 15 hours. No, he can't.

PN29

MR SCOTT: Yes.

PN30

THE COMMISSIONER: There are numerous problems with it, but the primary problem is that the first document wasn't too good, the second one doesn't cure its problems. Okay?

PN31

MR SCOTT: Okay.

PN32

THE COMMISSIONER: If we raise questions with you, you can't just say, "We've produced a new document and we put that to employees to vote and everything's hunky dory."

PN33

MR SCOTT: Yes.

PN34

THE COMMISSIONER: It is not. I thought I should speak to you personally about this. My Associate can point out some other or many, many other matters that we have come to in the second document, but the second document, in my view, doesn't have any standing anyway.

PN35

This is probably a question I know the answer to, but did you seek any professional help in doing this?

PN36

MR RIDLEY: No, Commissioner, no.

PN37

MR SCOTT: No.

PN38

THE COMMISSIONER: I think you should.

PN39

MR SCOTT: Okay.

PN40

THE COMMISSIONER: Did you look at our website for how to make an enterprise agreement?

PN41

MR SCOTT: We did, yes.

PN42

THE COMMISSIONER: You didn't follow it.

PN43

MR SCOTT: In the original submission you mean?

PN44

THE COMMISSIONER: Yes. It is - how do I put it politely to you?

PN45

MR SCOTT: We had a further look at the website after ‑ ‑ ‑

PN46

THE COMMISSIONER: After you had done it?

PN47

MR SCOTT: No, we looked at it initially, but then we obviously didn't follow enough of it, so we had to go back and ‑ ‑ ‑

PN48

THE COMMISSIONER: My Associate has printed it off for you. She will just give you a copy now just to save you any trouble.

PN49

MR RIDLEY: With the second one, Commissioner, sorry, Dion was - when we got the email back saying that it had to be put in by the Thursday, I think we went all gangbusters to try and get it done.

PN50

THE COMMISSIONER: Sir, I am not being critical of you.

PN51

MR RIDLEY: Thank you.

PN52

THE COMMISSIONER: I know you're trying to run a business, you're not lawyers.

PN53

MR RIDLEY: Yes.

PN54

THE COMMISSIONER: And not industrial relations experts, but I can't just take your word for it and pass it through. Okay?

PN55

MR SCOTT: Yes.

PN56

THE COMMISSIONER: Do you wish to say anything further to me before I rule on the matter?

PN57

MR SCOTT: No, I don't think so.

PN58

MR RIDLEY: I know from your assistant we'll get notification on some gear, but we have to go down the whole track again with the new ‑ ‑ ‑

PN59

THE COMMISSIONER: Yes.

PN60

MR RIDLEY: The 21 days and ‑ ‑ ‑

PN61

THE COMMISSIONER: Yes. And there are certain requirements that - the time limits are pretty well fixed in stone.

PN62

MR SCOTT: Yes.

PN63

THE COMMISSIONER: You have got to do it by those times - right - particularly the period between the issuing of the notice of representational rights and the beginning of voting. If you don't provide the requisite period, your application will fail no matter what.

PN64

MR RIDLEY: Okay.

PN65

THE COMMISSIONER: Okay? If you happen to file the application here late, I have the power to extend the time for you to do it. You should file it within 14 days of making the agreement. If you didn't then we are fairly liberal about that, provided everything else has been followed.

PN66

MR SCOTT: Yes.

PN67

THE COMMISSIONER: But things like the notice of employee representational rights, the time period between the issuing of that and the ballot occurring - absolutely immovable. That is in the Act of Parliament. So if you have got nothing else to say to me, I might as well give you the bad news directly.

PN68

MR SCOTT: Okay.

PN69

THE COMMISSIONER: That is that, in the light of the comments I have made to you and having examined the file, this is not an application capable of being approved by the Commission and the application is dismissed. That concludes proceedings. I am adjourned.

PN70

There are a lot of people out there who do this sort of work. It will cost you money but it will save you money in the long term.

PN71

MR RIDLEY: I have done it once many years ago with another particular company that we had and it was done through lawyers.

PN72

THE COMMISSIONER: It went through?

PN73

MR RIDLEY: Yes. It was done with some lawyers and that but it was about four goes, I think, before it was finally ‑ ‑ ‑

PN74

THE COMMISSIONER: Most of them succeed. If it comes back before me, I am not going to niggle you on every point - right - but filing an agreement with no name and the rest of it and then trying to file a supplementary document which is about 10 times as long as the first document, you can't do it. Sorry about that.

PN75

MR RIDLEY: Thank you.

PN76

MR SCOTT: Thank you.

PN77

THE COMMISSIONER: Go back to doing what you do better than this.

ADJOURNED INDEFINITELY                                                        [10.44 AM]