AG2017/1868, Transcript of Proceedings [2017] FWCTrans 297 (18 July 2017)

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PN1

THE SENIOR DEPUTY PRESIDENT: Yes, could I have the appearances please?

PN2

MR A PARDO: Pardo, initial A, with Ms K Biddleston, for the SDA.

PN3

THE SENIOR DEPUTY PRESIDENT: Thank you.

PN4

MS S GARLAND: Garland, initial S, solicitor and with me is S Duffy.

PN5

THE SENIOR DEPUTY PRESIDENT: When you say you're a solicitor, you're not employed by the company? Are you representing them or are you - - -

PN6

MS GARLAND: I'm representing them.

PN7

THE SENIOR DEPUTY PRESIDENT: Yes, have we dealt with the section 596 issue, the permission to - I can't remember? I don't think we have.

PN8

MS GARLAND: No.

PN9

THE SENIOR DEPUTY PRESIDENT: It's just that you have to seek permission to represent your client.

PN10

MS GARLAND: Certainly.

PN11

THE SENIOR DEPUTY PRESIDENT: Or they have to have permission to be represented by you, more accurately.

PN12

Is there any problem though? Do you have any problems, Mr Pardo, with Ms Garland representing the respondent?

PN13

MR PARDO: The matter seems fairly simple and straightforward, your Honour. From memory the relevant provisions of the Act going to efficiency and fairness, in this situation the SDA opposes permission to appear.

PN14

THE SENIOR DEPUTY PRESIDENT: So Ms Garland, why should you be given permission to represent the company?

PN15

MS GARLAND: Well, your Honour, I am effectively an in‑house solicitor.

PN16

THE SENIOR DEPUTY PRESIDENT: Sorry, that's what I wasn't clear about.

PN17

MS GARLAND: Yes.

PN18

THE SENIOR DEPUTY PRESIDENT: So are you employed by HRO Initiatives?

PN19

MS GARLAND: I'm employed by the group which is Employment Innovations.

PN20

THE SENIOR DEPUTY PRESIDENT: All right.

PN21

MS GARLAND: For which HRO falls within that group of companies.

PN22

THE SENIOR DEPUTY PRESIDENT: So I'm not sure whether you actually need permission on that basis.

PN23

MS GARLAND: I didn't anticipate that I would need permission, your Honour.

PN24

THE SENIOR DEPUTY PRESIDENT: You didn't?

PN25

MS GARLAND: No.

PN26

THE SENIOR DEPUTY PRESIDENT: No. Sorry, I might have misunderstood you. I think if you're employed by the group I don't think you need permission. I'll treat you as in‑house counsel in which case you can represent them. So yes, thanks.

PN27

MS GARLAND: Thank you, your Honour.

PN28

THE SENIOR DEPUTY PRESIDENT: Thank you. Look, just before we - I mean, I don't know whether you've got all this background, Mr Pardo, but I guess what I don't have is very much information about - I mean I've seen the agreement in question but I don't really know who is covered by it. I mean as in how many employees we're talking about, where they work, any of that kind of information. I assume the company can tell me all that. I don't know whether you're able to tell me, Mr Pardo, or would you be happy for the company just to outline those? It just helps me get my head around what I've got before me.

PN29

MR PARDO: Sure. The agreement as your Honour noted is quite short. It doesn't have a coverage clause. The section 318 application made by Kikki.K for several hundred employees which were previously covered by this agreement have transferred them to the Kikki.K Agreement. As your Honour would know, the Commission has received some 16 emails from employees unanimously supporting the termination of the agreement, each of whom work in a retail capacity. I believe all of them at different IGA sites, but of course the company can give more detail as to who's covered and how many.

PN30

THE SENIOR DEPUTY PRESIDENT: Yes, I just wonder before I hear from you further, Mr Pardo, I wonder whether I could just ask you, Ms Garland, could you just outline - you understand, I'm not quite sure where these people work, how many we're talking about. It's just if you're able to give me that information that would be helpful.

PN31

MS GARLAND: Absolutely. So the HRO Initiatives Pty Ltd Collective Agreement, which I'll just refer to as the HRO Agreement, has been used as a labour hire instrument.

PN32

THE SENIOR DEPUTY PRESIDENT: Right.

PN33

MS K BIDDLESTON: Your Honour?

PN34

THE SENIOR DEPUTY PRESIDENT: Can you not - - -

PN35

MS BIDDLESTON: Sorry to interrupt, we're having a little bit of difficulty hearing.

PN36

THE SENIOR DEPUTY PRESIDENT: Okay, what's the best - I think it's through the microphone isn't it?

PN37

MR PARDO: Your Honour is quite clear but Ms Garland - sorry to interrupt.

PN38

THE SENIOR DEPUTY PRESIDENT: Yes. No, that's okay. No, it's important we can all hear what each other is saying. So can you just see if that's any better?

PN39

MS GARLAND: Is that an improvement?

PN40

MR PARDO: It's still rather faint, to be honest.

PN41

THE SENIOR DEPUTY PRESIDENT: I wonder whether it actually almost might be better if you - I don't know. Well, as long as you speak into the microphone. I guess that's the trouble. I mean if it's easier to sit down, I can cope with that.

PN42

MS GARLAND: I don't mind. Is that any better?

PN43

MR PARDO: That's a bit better.

PN44

MS BIDDLESTON: That's a bit better.

PN45

MR PARDO: Thank you.

PN46

THE SENIOR DEPUTY PRESIDENT: Okay, just let us know if at any point you can't hear.

PN47

MR PARDO: Sure. Thank you very much, your Honour.

PN48

MS GARLAND: Okay, your Honour, so yes, traditionally this HRO Agreement has been used as a labour hire instrument. I think from the outset, your Honour, my client appreciates this is an old style outdated agreement and it has taken steps over the past couple of years to not use this agreement for any new clients that it takes on. Since this application has been received the largest client, as Mr Pardo has referred to, which was Kikki.K employees in the retail sector, they have in-sourced those employees. So effectively there are no retail employees now employed under this agreement.

PN49

THE SENIOR DEPUTY PRESIDENT: So all those people who contacted my chambers and said they wanted to terminate the agreement, I think the suggestion was they worked at various IGA stores. Are they covered by this agreement?

PN50

MS GARLAND: They actually aren't.

PN51

THE SENIOR DEPUTY PRESIDENT: Okay.

PN52

MS GARLAND: So we have done a search for all those employees. My client informs me that they're not actually employed by HRO. They did receive notice in respect to the instrument that does cover them, so we're not quite - we haven't quite got to the bottom of why they have contacted the Commission in relation to this matter.

PN53

THE SENIOR DEPUTY PRESIDENT: So who do you say is covered? Anyone?

PN54

MS GARLAND: So we do have one remaining client who is covered by this agreement who is actually in the building and construction industry.

PN55

THE SENIOR DEPUTY PRESIDENT: So what are they covered by, those employees? Or you don't know?

PN56

MS GARLAND: Those employees who have contacted you?

PN57

THE SENIOR DEPUTY PRESIDENT: Yes.

PN58

MS GARLAND: My understanding is they're employed by the Employment Innovations Enterprise Agreement.

PN59

THE SENIOR DEPUTY PRESIDENT: Okay, and what is the status of that? I thought I did - have I got an application as well to deal with that?

PN60

MS GARLAND: You do. Yes, so - - -

PN61

THE SENIOR DEPUTY PRESIDENT: And that's on Friday? Is that the matter on Friday?

PN62

MS GARLAND: Exactly.

PN63

THE SENIOR DEPUTY PRESIDENT: All right.

PN64

MS GARLAND: So the SDA have also made an application in respect of that agreement.

PN65

THE SENIOR DEPUTY PRESIDENT: And that's the matter on Friday?

PN66

MS GARLAND: That's right.

PN67

THE SENIOR DEPUTY PRESIDENT: All right.

PN68

MS GARLAND: And so that could potentially be where some confusion has arisen.

PN69

THE SENIOR DEPUTY PRESIDENT: So how many people - so you're saying there are only - well, it's just a bit tricky because when you say - let me just have a look at the - is that right, there's no coverage?

PN70

MS GARLAND: There's no coverage - - -

PN71

THE SENIOR DEPUTY PRESIDENT: There's a scope - so how do you know who is covered by what? Is it who they're employed by?

PN72

MS GARLAND: Exactly.

PN73

THE SENIOR DEPUTY PRESIDENT: So are they employed by - I mean, so are you saying the only people employed by HRO Initiatives Pty Ltd who are covered - are there classifications in the agreement?

PN74

MS GARLAND: There aren't.

PN75

THE SENIOR DEPUTY PRESIDENT: So are you saying that those people you referred to who work for this one building and construction company are the only people employed by HRO Initiatives Pty Ltd?

PN76

MS GARLAND: Exactly.

PN77

THE SENIOR DEPUTY PRESIDENT: So what can you tell me about them?

PN78

MS GARLAND: Yes, I mean it might be useful, your Honour, if I just summarise my client's position.

PN79

THE SENIOR DEPUTY PRESIDENT: Right.

PN80

MS GARLAND: In that in principle we do not oppose termination of this agreement. We accept that it's a WorkChoices agreement that has passed its nominal expiry date and my client accepts that the terms do not meet those, you know, provided for in the General Retail Industry Award as my friend has put in his application. So what we are seeking however, just in relation to the client that remains, is a short extension in terms of the termination date of this agreement.

PN81

THE SENIOR DEPUTY PRESIDENT: So what did you have in mind?

PN82

MS GARLAND: So we're seeking a termination date of 31 July.

PN83

THE SENIOR DEPUTY PRESIDENT: 31 July.

PN84

MS GARLAND: So just a four week - well, less than four weeks in terms of a termination date.

PN85

THE SENIOR DEPUTY PRESIDENT: Okay, so you're not opposing the termination, you just want a 31 July termination date?

PN86

MS GARLAND: That's right.

PN87

THE SENIOR DEPUTY PRESIDENT: Before we go on, Mr Pardo have you got any problems with that? Because I mean it would be - I must say in the past I have given employers some time to put their arrangements in place, and that's a relatively short - that's less than a month.

PN88

MR PARDO: That would be a matter for your Honour to decide. The SDA feels - the SDA submits, rather, that it's unnecessary, inappropriate in the specific conditions but we leave the timing to your Honour's discretion.

PN89

THE SENIOR DEPUTY PRESIDENT: So in fact these people presumably - you said they were in building and construction - presumably they're not going to go onto the General Retail Award?

PN90

MS GARLAND: No.

PN91

THE SENIOR DEPUTY PRESIDENT: They're going to go onto the National Building and Construction Industry Award, presumably?

PN92

MS GARLAND: Exactly, yes.

PN93

THE SENIOR DEPUTY PRESIDENT: Yes. Well, look, Mr Pardo, I mean obviously I have to - I think there's consensus here, without having even really heard from you, just based on your application, that it would be appropriate to terminate the agreement. It's obviously not contrary to the public interest to terminate the agreement and I don't know that I need to hear from you any further. Though it sounds like we probably will be back again on Friday. So look, I'll just - Mr Pardo, are you happy - I might just issue my decision now just orally and just say I am going to terminate the HRO Initiatives Pty Ltd Employee Collective Agreement 2007 with effect from 31 July. I am satisfied that it would not be contrary to the public interest to do that, and having regard to the views of the applicant and the employer, that it would be appropriate to terminate the agreement.

PN94

The only thing is I'm not quite sure, were those employee ever notified? I assume we might just need to - were those employees who did work for that company, they were notified?

PN95

MS GARLAND: Yes.

PN96

THE SENIOR DEPUTY PRESIDENT: We probably haven't - well, I don't know if we've heard from them or not, to be honest, so I suspect we haven't. How many employees are we talking about?

PN97

MS GARLAND: We're talking about there are 10 permanents and 28 casuals.

PN98

THE SENIOR DEPUTY PRESIDENT: I think on that basis that's probably all we need to do this morning. So that's my decision. I might just adjourn now just to quickly go off the record. So we might just - just about Friday, just so I know what I'm up for. So we'll just go off record.

OFF THE RECORD [10.24 AM]

ADJOURNED INDEFINITELY [10.24 AM]

Fair Work Commission Transcripts

AG2017/1868, Transcript of Proceedings [2017] FWCTrans 297 (18 July 2017)