Australian Industrial Relations Commission

Dec  1676 /96 B Print N7327

          AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

                 Workplace Relations Act 1996
   s.170NA application for enterprise flexibility agreement

                  Downtown Duty Free Pty Ltd
                     (C No. 23606 of 1996)

Sales                                                 employees
Airport operations

COMMISSIONER BACON                   BRISBANE, 12 DECEMBER 1996

Enterprise flexibility agreement

                           DECISION

On 28 October 1996 Nuance Australia Pty Ltd trading as Downtown
Duty  Free Pty Ltd (DDF) made application seeking approval  for
the  implementation  of  an  enterprise  flexibility  agreement
pursuant  to s.170NA of the Industrial Relations Act 1988  (now
the Workplace Relations Act 1996) (the Act).

    The  agreement is titled  the "Cairns International Airport
Enterprise Flexibility Agreement 1996" (the EFA).

    The  National  Union  of  Workers  (NUW)  appeared  in  the
proceedings  pursuant to s.170NB of the  Act  and  in  addition
claimed  to  be an eligible union as described in  s.170LB  and
sought  to  be  bound to the EFA pursuant to s.170NP.   I  will
return to this issue later herein.

    The  NUW  does  not  oppose  the Commission  approving  the
implementation  of  the  EFA.  It does however,  bring  to  the
Commission's  attention  certain  circumstances  in  which   it
believes  that  the  employees  could  be  disadvantaged   when
compared  to  the  employees  current  entitlements   per   the
International  Duty  Free Stores Award 1980  (the  award).   To
remedy  this  NUW  seeks that the Commission gain  undertakings
pursuant  to  s.170NF(2)  from  DDF.   NUW  describes  in   the
following  terms  the  undertakings it suggest  the  Commission
gain:

   "MS  PUGSLEY:   So  I guess, Commissioner,  based  on  these
   potentials  that are there for employees to earn  less  than
   the  award  rate  of  pay and the conditions  we  have  just
   outlined,  we  seek  really assistance from  the  Commission
   today  to  obtain  a  number of outcomes  in  the  forms  of
   undertaking  from  the company.  The first  being  that  the
   company  agrees to operate the agreement so that no employee
   under  the EFA will at any time be paid less than they would
   have  been  entitled to receive under the  award  as  varied
   from  time  to  time.  In this case, I  guess  what  we  are
   asking  for  is a commitment from the company  so  that  the
   employees  are  rostered so they will not receive  rates  of
   pay  less  than the award that could potentially  be  earned
   under the Enterprise Flexibility Agreement as the union  has
   set out in our document, exhibit P2.

   And I guess, Commissioner, - - -

   THE COMMISSIONER:  Over what period?

                 DECISION - AIRPORT OPERATIONS

   MS  PUGSLEY:   Over  the  period  of  the  lifetime  of  the
   agreement,  Commissioner, for two years, and  to  illustrate
   the  company's  undertaking the union would  seek  that  the
   company  agreed  to provide every month to all  employees  a
   comparison   between  the  difference   between   what   the
   employees would have earned under the Enterprise - what  the
   difference the employees would have earned under  the  award
   and   what   they  earn  under  the  Enterprise  Flexibility
   Agreement, and that these comparisons be made on  a  monthly
   basis   throughout   the  two  years   of   the   agreement.
   Commissioner, we also have some concern I guess  in  regards
   to  should there be any increases in the National Wage  Case
   -  should there be any National Wage Cases over the next two
   years  that  deliver a pay rise that would be  reflected  in
   the  award for award rates that these - an undertaking  from
   the  company that these increases in national wage - in  the
   award  wage  flowed on from National Wage Cases be  absorbed
   into  any  potential - any increases that the  employee  may
   earn over those two years.

   And  that the comparisons then throughout the two years made
   between  the award and the Enterprise Flexibility  Agreement
   will   indeed  reflect  the  award  at  that  time  of   the
   comparison  that  is  made.  This is the union's  submission
   today, Commissioner, if you have any questions."

    I  am  not  persuaded to gain the undertakings.  The  NUW's
assertion  that  the  potential  exists  for  employees  to  be
disadvantaged relies on the assertion that the current rate  of
overtime  will substantially increase.  In any event, if  NUW's
assertion  proves  correct,  the  EFA  contains  the  following
paragraph:

       "9.2     At  the  end  of  twelve  months  after   their
       commencement  (for  new  employees),  or  after   twelve
       months  from  the  date  of registration  (for  existing
       employees),  any employee covered by this Agreement  may
       request  a  comparison of their remuneration under  this
       Agreement  with  what they would have  been  remunerated
       under  the  Parent Award.  If that comparison  discloses
       any  shortfall  then  the  employee  will  be  paid  the
       shortfall by the Company."

    I  am satisfied that the paragraph ensures that over  a  12
month  period  (the  EFA provides for annualised  salaries)  an
employee cannot be disadvantaged under the EFA when compared to
the  safety net award.  Given the operation of the paragraph  I
do not believe the Commission has "grounds to refuse to approve
implementation (of the) agreement" (s.170NF(1)).  Such  grounds
must exist before undertakings should be considered.

   I am satisfied that the terms of the EFA do not disadvantage
the employees who are to be covered by it.

    I turn to consider whether or not NUW is an eligible union.
NUW claims it is but in its submission states:

   "But  we  would  also assert that we have  members  at  that
   actual  site too, Commissioner, although we were  unprepared
   today for any challenge to this eligibility.  We assumed  it
   would just be accepted by the company."

                 DECISION - AIRPORT OPERATIONS

   DDF challenges NUW's claim that it is an eligible union.  On
what  is  before me I am unable to form any view.   To  resolve
this  issue  I have decided to adopt the process identified  by
the  Full  Bench in the Enterprise Flexibility Agreements  Test
Case (the EFA Test Case) [Print M0464 particularly at page 27].

   Accordingly, I require:

.  that  the  NUW  no later than 5.00pm Wednesday  18  December
   1996   provide  in  the  Brisbane  Registry  a  confidential
   Statutory  Declaration  identifying  all  employees  of  the
   employer said to be union members.

.  that  DDF  no  later than 5.00pm Wednesday 18 December  1996
   provide  in  the Brisbane Registry a confidential  Statutory
   Declaration identifying all employees to be covered  by  the
   agreement.

   [Facsimile transmissions of the Statutory Declarations  will
   be accepted by the Commission]

.  DDF  is  to  provide  in  the Brisbane  Registry  advice  in
   writing  (facsimile)  no  later  than  5.00pm  Wednesday  18
   December 1996 whether or not it wishes to cross examine  the
   author  of the NUW Statutory Declaration.  In the  words  of
   the  Full Bench in the EFA Test Case "such cross examination
   could go to the process used by the person to ascertain  the
   membership  status of the employees identified.  However  in
   our  view  the cross examination cannot be used  to  require
   the  disclosure of the identity of the employees said to  be
   union members".

    In  the  event that a statutory declaration is not received
from the NUW a decision will issue approving the implementation
of  the  EFA.  On the other hand if a statutory declaration  is
received and I am satisfied the NUW has at least one member and
DDF  does not wish to cross examine the author of the statutory
declaration, a decision will issue approving the implementation
of the EFA and binding the NUW to the EFA.

   Should DDF wish to cross examine the author of the statutory
declaration dates will be set to facilitate that course.

    Alternatively the parties can discuss this issue themselves
and  if agreement is reached can advise the Commission of their
agreement  which  would circumvent the delays inherent  in  the
above course/s.

BY THE COMMISSION:

COMMISSIONER
Conditions  of employment - enterprise flexibility agreement  -
sales  employees, airport operations - application for approval
-  eligible union - union submitted potential dis-advantage and
sought  undertakings  with s170NF(2)  -  EFA  contained  clause
whereby  any  shortfall disclosed in an  annual  comparison  of
remuneration under the Agreement compared to Parent Award  will
be paid to employee - Commission satisfied employees can not be
dis-advantaged  therefore no grounds to refuse  implementation,
therefore undertakings can not be sought - whether an  eligible
union - procedure to resolve issue as per procedure in EFA test
case [Print M0464 at p27] - confidential statutory declarations
to be filed - EFA to be approved.



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