AG2015/2792, Transcript of Proceedings [2015] FWCTrans 405 (6 July 2015)

TRANSCRIPT OF PROCEEDINGS
Fair Work Act 2009 1052082

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DEPUTY PRESIDENT BARTEL

AG2015/2792

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

Application by Agri Labour Australia Pty Ltd
(AG2015/2792)

Adelaide

10.29 AM, FRIDAY, 26 JUNE 2015

PN1

THE DEPUTY PRESIDENT: Yes, good morning. I'll just take appearances, thank you.

PN2

MR C MOSSMAN: Good morning, your Honour. My name is MOSSMAN, initial C, of MacPherson & Kelley Lawyers and with your Honour's leave I appear on behalf of the applicant company. I'm instructed here today by Mr Casey Brown, director of the applicant company.

PN3

THE DEPUTY PRESIDENT: Yes, Mr Mossman. Leave to appear is granted. I'll just note that I've received your written submissions together with a statement of Mr Brown and I've also just printed off the undertakings which you sent through.

PN4

MR MOSSMAN: Thank you, your Honour.

PN5

THE DEPUTY PRESIDENT: In relation to that, perhaps I'll just indicate that one of the concerns I did have was about the rates of pay, as previously indicated, and I see that one of the undertakings addresses that matter and goes to passing on award increases. Thank you for that.

PN6

MR MOSSMAN: Additionally, your Honour, the undertakings should go to that issue, particularly for the storage worker, increasing their rates of pay after the three month mark and the 12 month mark as well.

PN7

THE DEPUTY PRESIDENT: Yes. Readings the undertakings it appears to me that apart from the increase, as the award increases the rest of the undertakings are those that were set out within the written submissions that you provided.

PN8

MR MOSSMAN: Thank you, your Honour.

PN9

THE DEPUTY PRESIDENT: Yes. Thank you for that. In relation to the written submissions, I've had an opportunity to read those and have a look at the - some of the authorities that have been cited. Certainly don't feel obliged that you need to go through those again, Mr Mossman, unless there's anything that you wanted to highlight or emphasise or anything in addition to those submissions.

PN10

MR MOSSMAN: No, your Honour, other than just to say the submissions have obviously been designed to be a comprehensive statement from my client in relation to the reasons why we say the agreement should be approved.

PN11

THE DEPUTY PRESIDENT: Yes.

PN12

MR MOSSMAN: It seems to me, in my submission, your Honour, one can generally categorise perhaps two different types of categories in which such agreements may be approved, or distinguished between two such categories. We have the scenario of a regular business operating in a regular industry which has as a part of any normal business (indistinct) productions or highs and lows of work but the reality for those businesses are there is still work nonetheless through the 52 week calendar year. What might be described as just normal ebbs and flows in production.

PN13

Most authorities seem to distinguish that type of business from the other category which my client falls within, which is subject to quite extreme seasonal factors which impact on its ability to offer hours. Unlike those businesses which may have normal ups and downs in business activity, the example I'll give, for example, your Honour, is in a caf . It might be slow on a Monday and Tuesday and Wednesday but nonetheless open and still working, and on Saturday it might have this particularly busy day.

PN14

My client is in that category of cases where due to the nature of the industries that it works in and due to the geographical locations which it operates on, and your Honour would have seen from the schedules in Mr Brown's statement that we operate in some fairly regional and remote areas, throughout a number of states in Australia, including South Australia and Queensland and Northern Territory as well. We're in that position and the example Mr Brown gives is of the mango picker. There is only work available for a short period of a couple of months at a particular time. Outside that scope of months there is no work available at all to offer to employees. So on that basis, the public interest in which the agreement seeks to advance is dealing with the problem of categorising the submissions as under employment.

PN15

In a situation with a mango farmer or a mango picker, rather, so in Darwin, they have a couple of months to get the work done or the hours are only going to be offered for a period of time. Your Honour would appreciate that the labour hirer has no control over what the host does. The host dictate to us what hours may or may not be available depending on production. The choice that can be made to a farmer of course is when anyone gets to 38 hours and say in that example to get him the next casual.

PN16

That's not ideal and it's not ideal for the worker either because the only solution in that case for the mango picker is go down the road to the next farmer, but then as your Honour would have seen in the submissions and statements of Mr Brown, that worker then goes to being in a second job, from a second payer and the taxation consequences as per the ATO requirements as analysed in Mr Brown's statement applies to the worker as well. So it's not ideal for us, it's not ideal for the worker and it's not ideal to the host client. It's those matters, in addition to those that we've highlighted in some details in the submissions and the statement, your Honour, which puts this matter in that second category of cases where in my respectful submission, exceptional circumstances are enlivened and the arrangements and the agreements, if not (indistinct) public interest, at least not contrary to it.

PN17

Your Honour, unless you have anything specific for me I think (indistinct) submissions (indistinct).

PN18

THE DEPUTY PRESIDENT: Yes. I generally agree with everything you've said. In relation to the seasonal nature of the work, the various locations that are attached in CB1 and the type of work that's undertaken there, I just had a couple of questions about that and I was wondering whether you had intended to get Mr Brown to give evidence, or is an appropriate time for us to do that?

PN19

MR MOSSMAN: I was happy just to put Mr Brown's statement into evidence, unless your Honour has - I didn't have any further particular questions for Mr Brown unless your Honour did.

PN20

THE DEPUTY PRESIDENT: Yes, I did have some in relation to the attachment to Mr Brown's statement.

PN21

MR MOSSMAN: Yes. In that case, if I could just quickly step outside for two minutes just to quickly explain to Mr Brown just what the process will be, your Honour.

PN22

THE DEPUTY PRESIDENT: Sure.

PN23

MR MOSSMAN: I can do it here.

PN24

THE DEPUTY PRESIDENT: Yes.

PN25

MR MOSSMAN: That's fine, your Honour. Does your Honour requirement my client to go to the witness box here?

PN26

THE DEPUTY PRESIDENT: No, that's fine. Mr Brown can stay seated there.

PN27

MR MOSSMAN: Thank you, your Honour. On that basis I'll formally call Mr Brown.

PN28

THE DEPUTY PRESIDENT: Thank you, and my Associate will swear Mr Brown in or he can take an affirmation.

<CASEY BROWN, AFFIRMED [10.37 AM]

EXAMINATION-IN-CHIEF BY MR MOSSMAN [10.37 AM]

PN29

MR MOSSMAN: Your Honour, perhaps I'll just get Mr Brown to identify his statement and the formally tender that.

PN30

THE DEPUTY PRESIDENT: Yes, thank you.

PN31

MR MOSSMAN: Mr Brown, can you state your full name and address?‑‑‑My full name is Casey Ryan Brown, (address supplied).

PN32

You're a director of Agri Labour Australia Pty Ltd?‑‑‑Correct.

PN33

You've made a statement in relation to these proceedings?‑‑‑I have.

PN34

That's a statement of two pages and linked with two attachments?‑‑‑Correct.

PN35

That's a statement of nine paragraphs in duration?‑‑‑Correct.

PN36

That statement's been signed by you on 23rd of the 6th 2015?‑‑‑It has.

PN37

I'll just give you that document. Is that the statement you've made in relation to these proceedings?‑‑‑Correct.

PN38

Is that, to your knowledge and belief, true and correct?‑‑‑It is.

PN39

I'll formally tender that, your Honour.

PN40

THE DEPUTY PRESIDENT: Thanks, Mr Mossman. Yes, the statement of Casey Brown with two attachments will be marked exhibit A1.

EXHIBIT #A1 WITNESS STATEMENT OF CASEY BROWN DATED 23/06/15

*** CASEY BROWN XN MR MOSSMAN

PN41

MR MOSSMAN: I've no further particular questions for Mr Brown so I'll hand over to you, your Honour.

CROSS-EXAMINATION BY THE COMMISSIONER [10.39 AM]

PN42

THE DEPUTY PRESIDENT: Yes, thank you. Mr Brown, I just had a couple of questions in relation to attachment CB1. For example, in relation to the industry on the left-hand column, some of them and for example mango, which Mr Mossman has already addressed and I've no issues with that. Some of them, however, if we have a look at grain storage and distribution in Toowoomba. My question is - well two questions, number 1 is that a seasonal industry and number 2, are the employees that are provided by your business, are they supplementary to an existing workforce?‑‑‑Correct, they are, your Honour. Depending on the time of year, whether it's a summer harvest or a winter harvest and depending on the commodity, if it's grain, wheat, sorghum or pulse commodities. Obviously depending on the season as well. If it's a large volume of harvested commodity well then additional staff are required to assist in that harvest period to store it and store (indistinct) the grain, generally for a short period of time when that harvest is completed.

PN43

In that circumstance, the - well, perhaps you can tell me, would the majority of the workers be the sort of employees of that particular business or would they be your employees?‑‑‑They would be our employees. The company themselves would have its permanent staff and they would have top up staff that they engage us to provide.

PN44

But top up to the top up?‑‑‑Sorry?

PN45

Sorry. So you said that the company itself, the host employer if I can call it that, would have its own permanent staff, plus its own top up labour, but in addition to that you would provide some labour?‑‑‑Correct, yes.

PN46

So in that circumstance would the labour that you provide be the substantial majority of the workforce at that particular time or a minority of the workforce at that particular time?‑‑‑The minority it would be, your Honour, yes. Depending on the harvest - sorry, your Honour - depending on the harvest. At the moment we're seeing unfortunate conditions and the harvesting isn't very high, the volume of crops, therefore the number of staff required is minimal. During last harvest like we saw three years ago, a lot of staff were required, more staff were required during that short period of time, they would require more additional staff.

*** CASEY BROWN XXN THE COMMISSIONER

PN47

Just under the one I'm referring to, the next one is food processing, also in Toowoomba and my questions are sort of the same in relation to that enterprise as well?‑‑‑Yes, it's the same again, depending on the crop and the nature of the crop that's being harvested or processed (indistinct). A lot of the staff that would be engaged, again the companies would have their permanent staff and then during that period, that busy period, that peak period, they would engage us to provide additional staff for that peak period, whether it's four weeks, eight weeks, whatever the nature of the employment may be. And then ending the harvest processing period, those staff would obviously no longer be employed and the only staff of that company would be the permanent staff employed.

PN48

Mr Brown, it might be easier if we perhaps - rather than me taking you through every one of the industries that are identified here, could you perhaps identify for me in that first column, which of the operations are seasonal in nature. So in other words, they're only operating at a particular time of the year and those industries where your employees are the major and substantial part of the workforce?‑‑‑Looking at that, all of those industries are seasonal in nature, your Honour. Depending on the industry, a lot of the horticulture clients, our staff make up a lot of the majority and then in the other, the broad acre farming, storage and handling clients, there's a mixture of the companies, permanent staff and our additional staff during that harvest period.

PN49

For example, in the animal area; poultry, the piggery, are you saying their seasonal?‑‑‑Yes, depending on the period, depending on the demand that these companies have, in that scenario we may have a client contact us saying that they have an increase in orders or a - whatever it may be - demand, therefore we have to provide staff which may be for a period of two months to fill that demand, or it may be for three months to fill that demand and then obviously that contract is completed at that time.

PN50

Thank you. I'm not sure if I had any others. No, look, I think that was all I had. Mr Mossman, did you have any questions arising out of that?

PN51

MR MOSSMAN: Nothing arising, thank you, your Honour.

PN52

THE DEPUTY PRESIDENT: Thanks, Mr Brown. You're released from your oath?‑‑‑Thank you, your Honour.

<THE WITNESS WITHDREW [10.45 AM]

*** CASEY BROWN XXN THE COMMISSIONER

PN53

Mr Mossman, it does seem to me that - as I indicated I've got no issue with those seasonal industries where there's just work for a short period or a season, and particularly where the employees of your client are a significant proportion of the workforce. It just seems to me that there may - well, perhaps I'll run this past you. That there could well be an issue if you've got a significant workforce already on site and then a minority workforce comes in on lower terms and conditions, in terms of the penalty rates and those sorts of things. I'm just wondering whether the sort of arguments that you raise in relation to the mango season are applicable in that circumstance.

PN54

MR MOSSMAN: They are and I think what Mr Brown might have been trying to say is those circumstances where they might be the big glut of the workforce are in those circumstances - (indistinct) the majority of the workforce or a business for 52 weeks of the year in a horticultural type environment, for example, there might be a particular business where our workers will be the majority for a period of weeks or a month also, when the work has to be done but that would be the status quo, as it were, for that business, your Honour, during normal business operations, or during the 52 week calendar year. It wouldn't be the case that through a 52 week calendar year our client would be the majority of someone's workforce.

PN55

THE DEPUTY PRESIDENT: No, no, I understood that. It was really in respect to those - the two or three months period. I mean did you want to say anything about the fact that you then have the majority of workforce potentially on one set of conditions and top up labour on another set? I was thinking particularly in an area like Toowoomba which is not sort of a remote location, it's a sizeable - I think it's a city, I'm not sure.

PN56

MR MOSSMAN: It's probably best categorised as a regional city, your Honour, yes. When people generally speak of Toowoomba they're talking about the surrounding district as well which (indistinct) agricultural areas on the mountain - on top of the tablelands. That's where one reaches the tablelands up there, which is another agricultural region in Queensland, your Honour.

PN57

THE DEPUTY PRESIDENT: Yes.

PN58

MR MOSSMAN: In relation to that, as I understand in practice the issue of disparity between say the host employees and the labour hire doesn't often arise. In fact, in those cases it's more for the host (indistinct) my client that would have been paid their permanents that (indistinct) amongst the labour hirers so in order to sort that issue out, your Honour, so it wouldn't - from a practical point of view it's not an issue that we really have to grapple with for two reasons. One, usually the host seeks a standard sort of terms and conditions of employment for everyone, being their permanents and being their labour hirers, and your Honour would appreciate that my client is of course free to pay above the agreement and above the award, whatever it may be, which does in fact happen in practice. But where that may occur is particularly in the horticultural sector where the provisions of the award - the horticultural award in reality compared to the agreement are pretty significantly different, particularly dealing with say casual labour which has regards to the differences of that particular horticultural award, which your Honour would well know is a very flexible award for employers (indistinct). So it's in practice not an issue that comes up for us, your Honour.

PN59

THE DEPUTY PRESIDENT: Thank you for that. I think I'll perhaps request a copy of the transcript and have a look at that before I issue a decision but it shouldn't be far away. I'd like to take the opportunity just to consider it a bit further before I announce a decision on that. If there's nothing further, Mr Mossman.

PN60

MR MOSSMAN: No, thank you, your Honour.

PN61

THE DEPUTY PRESIDENT: Thank you for that.

ADJOURNED INDEFINITELY [10.50 AM]

LIST OF WITNESSES, EXHIBITS AND MFIs

CASEY BROWN, AFFIRMED............................................................................. PN28

EXAMINATION-IN-CHIEF BY MR MOSSMAN............................................. PN28

EXHIBIT #A1 WITNESS STATEMENT OF CASEY BROWN DATED 23/06/15 PN40

CROSS-EXAMINATION BY THE COMMISSIONER.................................... PN41

THE WITNESS WITHDREW.............................................................................. PN52