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Fair Work Commission Transcripts |
3647 
, Transcript of Proceedings [2016] FWCTrans 506 (9 November 2016)
TRANSCRIPT OF PROCEEDINGS
Fair Work Act 2009
DEPUTY PRESIDENT SAMS
s.185 - Application for approval of a single-enterprise agreement
Application by Beechworth Bakery Employee Co Pty Ltd
(AG2016/ 3647 )
Sydney
10.07 AM, MONDAY, 24 OCTOBER 2016
PN1
THE DEPUTY PRESIDENT: Could I have the appearances?
PN2
MR A DUC: If the Commission pleases, Duc, initial A. I appear for the applicant. With me is Mr Martin Matassoni, who is the managing director of the organisation, the applicant, and in Melbourne is Mr McPherson from Broad Reach ER who assisted Mr Matassoni with the enterprise agreement process.
PN3
MR A BURKE: If the Commission pleases, I appear on behalf of the Shop, Distributive and Allied Employees' Association: Burke, initial A.
PN4
THE DEPUTY PRESIDENT: Thank you. Was permission granted previously, Mr Duc? I can't recall.
PN5
MR DUC: I do believe it was granted previously. There was some discussion in the telephone conference where my appearance was granted by your Honour.
PN6
THE DEPUTY PRESIDENT: Yes, because that's - we're in a hearing now. Do you still seek permission?
PN7
MR DUC: Yes, I still seek permission. The matter does involve some matters of complexity. There may be matters that arise regarding award coverage, the application of the BOOT and various case law decisions that have been decided of late that Mr Matassoni would need assistance within this application.
PN8
THE DEPUTY PRESIDENT: Are you still opposed, Mr Burke?
PN9
MR BURKE: Yes, we do, Deputy President. As we said last time we don't believe there are matters of complexity in this matter in terms of whether the applicant needs assistance with award coverage and so on. We'd note that Mr McPherson, who is also involved in this matter, prepared the F17 and we believe he could assist the applicant in this matter.
PN10
THE DEPUTY PRESIDENT: Well, it goes beyond the F17, doesn't it?
PN11
MR BURKE: Well, there are other matters but as we put last time, we don't believe there are complex legal matters. We'll leave it at that.
PN12
THE DEPUTY PRESIDENT: Well, I disagree. Permission is granted. Yes, well, I see that there has been - have there been any further exchanges between the parties since the last occasion? There's been documents exchanged, I see.
PN13
MR DUC: That's right: documents exchanged, various submissions and calculations have been put, the latest being from Mr Burke last night regarding some further calculations. No further discussions, your Honour, if the question is whether there has been any attempt to clarify matters or come to a consent position, that has not been undertaken.
PN14
THE DEPUTY PRESIDENT: Well, how do you see the process proceeding today?
PN15
MR DUC: Your Honour, in regard to the process, I would be proceeding to ask Mr Matassoni to give his evidence, which is in the form of a witness statement. If your Honour requires then I was going to be making submissions regarding the award coverage issue and what the correct award is for the purpose of the majority of employees, the front-of-house employees, and then I was going to make some submissions regarding the BOOT and how the BOOT has been passed by the applicant.
PN16
THE DEPUTY PRESIDENT: So just remind me: does the question of the BOOT hinge on which award applies or if either one applies there would still be BOOT issues?
PN17
MR DUC: From our perspective it does matter. The restaurant industry award is the correct legal coverage from our position, your Honour. That is the award that truly covers the employees and that is the award on which the agreement should be assessed by. The general retail award does have different terms and conditions and it is just not applicable to the staff. So BOOT issues do not arise, we say, if the restaurant industry award is implied for the front-of-house staff. That is the main issue.
PN18
The other employees - the food, beverage, tobacco - there has been no issues raised regarding the BOOT and for the clerks there's been no issues regarding the BOOT. The road transport my friend may have something to say about but the issue hinges on the award application for the front-of-house staff: that is the real issue as we see it, your Honour.
PN19
THE DEPUTY PRESIDENT: Well, I know that but that wasn't my question. What I'm trying to establish is does it matter in terms of the BOOT - if the general retail applies does the BOOT issues disappear?
PN20
MR DUC: No.
PN21
THE DEPUTY PRESIDENT: Still remains?
PN22
MR DUC: Yes.
PN23
THE DEPUTY PRESIDENT: Right. That's your understanding?
PN24
MR BURKE: Yes, Deputy President, and we've also said in our submission that even if the restaurant award applies we believe there is disadvantage to employees. We've shown that in our calculations and our submissions as well. So either award, there is disadvantage.
PN25
THE DEPUTY PRESIDENT: Right, and as you know, when making assessments as to the BOOT, it's just a line-by-line comparison to what the rates are but what other benefits are available. But in looking at the documentation there doesn't appear to be anything in addition that could be taken into account: is that that, Mr Duc?
PN26
MR DUC: Your Honour, there are other matters that can be taken into account and even on the - the base calculations that we provided when the application was first filed, the agreement passes when based on the restaurant industry award. They were documents that were filed with the F17, with the enterprise agreement. There were some calculations in an Excel spreadsheet. Those calculations were done on the restaurant industry award so we don't say that there are other matters that necessarily need to be taken into account because on the figures provided to the Commission the enterprise agreement passes the BOOT test.
PN27
THE DEPUTY PRESIDENT: Yes, but your task might be easier if there are other matters that can be balanced in the equation. I'm just looking at the new form 17, which talks about the 3.5 - 3.4. It only says that the base rates of pay overlap. It doesn't mention any other matters. So is that the position?
PN28
MR DUC: The base rates are higher, yes.
PN29
THE DEPUTY PRESIDENT: So there are no other things? For example, there are many agreements which have better redundancy provisions, different arrangements for higher penalty rates, for different, better conditions in terms of spread of hours and all those sorts of things that are taken into account. But none of those feature here?
PN30
MR DUC: That's correct, your Honour.
PN31
THE DEPUTY PRESIDENT: Yes.
PN32
MR DUC: It's just the higher monetary value.
PN33
THE DEPUTY PRESIDENT: Right, okay, well, that makes it perhaps a little easier.
PN34
MR DUC: Yes.
PN35
THE DEPUTY PRESIDENT: All right. Well, are you content with the process that's been - are you calling any evidence, Mr Burke?
PN36
MR BURKE: No, your Honour.
PN37
THE DEPUTY PRESIDENT: Yes, all right, thank you. All right, well, proceed then, Mr Duc.
MR DUC: Thank you, your Honour. I call then Mr Martin Matassoni.
<MARTIN MATASSONI, SWORN [10.16 AM]
EXAMINATION-IN-CHIEF BY MR DUC [10.16 AM]
PN39
MR DUC: Mr Matassoni, you've prepared a witness statement for the purposes of today's proceedings?‑‑‑Yes, I have.
PN40
May I show you a copy? Is that a copy of the evidence you will give in these proceedings?‑‑‑Yes, it is.
PN41
I tender the witness statement of Mr Martin Matassoni.
PN42
THE DEPUTY PRESIDENT: Any objection?
PN43
MR BURKE: No, your Honour.
*** MARTIN MATASSONI XN MR DUC
THE DEPUTY PRESIDENT: Yes, thank you. I will mark the witness statement of Martin James Matassoni exhibit 1.
EXHIBIT #1 WITNESS STATEMENT OF MARTIN MATASSONI
PN45
THE DEPUTY PRESIDENT: That's the evidence, is it, Mr Duc?
PN46
MR DUC: Thank you, your Honour.
THE DEPUTY PRESIDENT: Yes. Your witness.
CROSS-EXAMINATION BY MR BURKE [10.16 AM]
PN48
MR BURKE: Mr Matassoni, attached to your exhibit - or certainly the one I have - there are tables of calculations that are I think in annexure G?‑‑‑G?
PN49
The last one?‑‑‑There's lots of calculations here.
PN50
Yes, yes - so there are 10 pages of those, 1 to 10? Mr Duc mentioned earlier about calculations that had been provided to the Commission. Are these the only calculations that have been provided to the Commission in relation to this matter?‑‑‑Yes, and also a BOOT calculation that was originally submitted with the F17.
PN51
Right, okay - do you have a copy of that with you?‑‑‑On computer I do.
PN52
All right?‑‑‑That was all the original information with the original F17.
PN53
The original F17?‑‑‑Yes.
PN54
So it wasn't attached to the amended one - - -?‑‑‑No. There is no changes within that - in those calculations.
PN55
By that do you mean that the levels that you now identify - the twos and threes in the restaurant award - were the correct calculations in those figures?‑‑‑Yes, so in all our calculations we've used the correct calculations.
*** MARTIN MATASSONI XXN MR BURKE
PN56
Well, but not in annexure G?‑‑‑In the F17, that's why we made the amendment; because we put the wrong level.
PN57
But if I - - -?‑‑‑We noted the wrong level.
PN58
Yes, but what I'm getting at is the information that you provided in your statement today, in G, if we look at - it'd be much easier to blow them up into A3 so I could read the numbers. If we look at page 4 of 10 - sorry, no. If we look at 9 of 10, it has - dated 27 July to 2 August. I assume these are front of house: these are Sam Pi, Leah - you see those names?‑‑‑Yes, I do.
PN59
So those amounts there - those are not the correct level twos and threes - - -?‑‑‑They're our correct level against the award: so those rates that are on page 9, the base rate one is our Monday-to-Friday rate. They're the correct rates. Then we have a rate two, which covers even spread of the Saturday and Sunday of the 25.75. So they are the correct rate.
PN60
Sorry, yes - those are the agreement rates. If I take you to 10 of 10, you have those rates?‑‑‑Yes.
PN61
You have 18.91 on Wednesday, Thursday and Friday, 22.77 on Saturday, 27.32 on Sunday and so on?‑‑‑Yes.
PN62
Now, those were - the Saturday rates, are they correct as a level two?‑‑‑They were based on my calculations so these are just an example to show how our agreement passes against. So the level base rate one, level two is the award rate and then the other two columns are the Saturday rate and the Sunday rate.
PN63
I think I've highlighted to yourself and Mr Duc and Mr McPherson, I believe, those Saturday and Sunday rates were unfortunately the lower rates. Are you aware of that?‑‑‑I believe that my calculations might not have been quite correct.
PN64
Yes?‑‑‑But if you still apply the 18.91 and I think it's 125 per cent for the Saturday and 150 per cent - my calculations there might not be quite correct. But it still shows how our agreement passes the BOOT test.
PN65
But those are not the correct rates, unfortunately. Based upon the error in the F17 - - -?‑‑‑Sure.
*** MARTIN MATASSONI XXN MR BURKE
PN66
Now, when you did your calculations against the award, did you for, say, part-timers and full-timers, include annual leave loading in your calculations?‑‑‑In these calculations? In our calculation for the agreement annual leave loading was included, yes.
PN67
The calculations you've given to the Commission - - -?‑‑‑Yes.
PN68
- - here, in annexure 10 is there any reference to annual leave loading from the award being included in your calculations?‑‑‑The - in the calculations that I've provided they're the rates straight from the award.
PN69
So it's just the award rate of pay?‑‑‑Yes.
PN70
There's no relation to - - -?‑‑‑That's correct.
PN71
- - the annual leave loading? Right, okay. Also, when you looked at, for example, one of 10 with the bakers - I'll refer to them as the bakers - we have I think three groups of bakers that you looked at F1-10 - do you have that in front of you?‑‑‑Yes.
PN72
Now, you've done calculations on rosters where people have worked over 16 weeks and in the first group the people are 177.80 better off as a total, I think?‑‑‑Yes.
PN73
The second group, $845.12 better off, and the last group are worse off. Now, in terms of your calculations for certainly the first group, over the 16-week period there would be a number of public holidays that would apply for these rosters?‑‑‑Sure, yes.
PN74
Potentially, two or three or four public holidays each 16 weeks on average?‑‑‑Without really knowing - I'm not too sure.
PN75
You'll agree with me there's about 12 public holidays each year in both - certainly in Victoria. On average that would be over 16 weeks about three?‑‑‑Okay.
PN76
Yes. Now, did you include any calculations for public holidays in these calculations as well?‑‑‑No, I was just looking at base rates.
*** MARTIN MATASSONI XXN MR BURKE
PN77
Thank you. Now, I might take you to the menu that you have given to your statement at A. As I mentioned to you unfortunately there's no very much on your menu that I can eat. I think I might be able to have the cottage pie with GF - if GF means gluten-free. You have that in front of you, do you?‑‑‑Yes, I do.
PN78
So looking at one of seven: cottage pie, GF, is gluten-free, is it?‑‑‑Yes.
PN79
There's something I can eat if I come up next time. But in terms of what you have there, I think on the first page under pies, you have 11 items there, which were steak pie and so on; a pastie and a sausage roll. Now, those are items that are made in the bakery?‑‑‑Yes.
PN80
All of those? Those are sold in certainly the site that you have further on, where the photos are in BMC and D and E. I assume that's Beechworth, is it?‑‑‑Yes.
PN81
So those items are sold there?‑‑‑Yes.
PN82
Now, they can be sold to takeaway: a customer can take those away?‑‑‑Yes.
PN83
I'll take you to the focaccias and Turkish rolls. I think you have six there. The focaccias and the rolls themselves, they're made on site, are they?‑‑‑Yes, they are.
PN84
When you buy, say, the harvest or the prospector you can take that away, can you?‑‑‑Yes, you can.
PN85
With quiches, there's four: they're made on site?‑‑‑Yes.
PN86
I can take those away if I want to?‑‑‑Yes.
PN87
Now, the wraps, there are three. The wrap itself is made on site?‑‑‑The wrap itself - the fillings are all made - the wraps basically just all put together, the wrap itself is purchased in.
PN88
The actual wrap itself?‑‑‑The actual wrap itself.
PN89
Okay. Now, the sandwiches - the bushwhacker: is the bread for that made on site?‑‑‑Yes.
*** MARTIN MATASSONI XXN MR BURKE
PN90
Now, just in relation to salad of the day: at the time that the agreement was voted on was June. This was the menu at the time?‑‑‑We always have a salad but we have a bigger range of salad.
PN91
However, from September to the end of May is when salads are available; salad of the day is available. So when the agreement was voted on there was no salad of the day available, is that correct?‑‑‑There would have been a salad but not our special salads. We wouldn't have been promoting it, no.
PN92
The salad of the day is not available in June, July or August, is that correct? Now, when it comes to toasties there are five, I think. With those the bread for those is made on site?‑‑‑Yes.
PN93
Yes. Okay, I can buy one of those and take them away?‑‑‑Yes. With some of our other locations we actually buy bread in as well from local bakeries. So three of our sites we buy bread in.
PN94
But the toastie, if I but it there, I can take it away?‑‑‑Yes, you can.
PN95
Thank you. Now when it comes to breakfast items I assume the muesli is something you probably eat - you probably don't take it away, the muesli, I would assume?‑‑‑The majority is eat-in.
PN96
But some people take away the muesli to eat?‑‑‑I'm sure they do.
PN97
In terms of banana bread and the sour dough, they're made on site?‑‑‑Yes.
PN98
I can buy those and take those away?‑‑‑Yes. We have a limited range in Albury. We're under a contract there that we're not allowed to sell most bread. We're only allowed to sell a very small variety of bread - - -
PN99
The majority of - - -?‑‑‑ - - being three or four bread products.
PN100
The majority of your sites being in Victoria, they've got the bread you make and people can take them away?‑‑‑Not all of them, no: so two of our locations bake bread on site and sell bread on site. The other three make a very small amount for ourselves and a lot of it is bought in from a local bakery to make sandwiches and things like that. We don't specialise in bread in any of those locations.
*** MARTIN MATASSONI XXN MR BURKE
PN101
It's a small amount of your bakery products but it is still an amount as I notice from your evidence earlier as well?‑‑‑Yes, but with that GST-free stuff, that also includes water, which is - without remembering what that GST percentage is but that also includes water and juice so the bread items is very low, if that's what you're getting at.
PN102
We'll probably come back to that. Now, the omelette wrap - I was going to ask can that be taken away? Can you buy that and take it away if you want?‑‑‑Yes.
PN103
I assume the same with the scones, can be bought and taken away?‑‑‑Yes.
PN104
The scones are made on site?‑‑‑Yes.
PN105
Yes. Now, with the sweet options you have the most number, 28. Obviously this is the specialty, and in particular what's known as the beesting, I think, is the signature item for Beechworth Bakery, am I correct?‑‑‑Yes.
PN106
So without going through all of them - coffee scroll, the beesting, custard Danish, donuts, lamington and so on - snickerdoodle and a zoomer: these are all products that are made on site?‑‑‑Yes, and also some of these products are pre-prepared and premade within two of our locations.
PN107
Okay, so they're made on site. I can buy these and I can take them away?‑‑‑Yes.
PN108
Okay. So I think in there there's about 67 items, that I've counted. I think from that, from what you've said, the majority of those I can buy and I can take away?‑‑‑Yes.
PN109
Yes. I don't have to sit and consume on site?‑‑‑No.
PN110
Now, if the majority of those products are baked on site and can be taken away isn't therefore the predominant activity the baking of products for sale in your establishment?‑‑‑Sorry, I didn't quite get the question.
PN111
The majority of these items are made on site?‑‑‑Yes.
PN112
They can be bought and taken away. I can eat them elsewhere?‑‑‑Yes.
*** MARTIN MATASSONI XXN MR BURKE
PN113
Isn't therefore the predominant activity in your establishments the baking of products for sale on the premises?‑‑‑So you're asking whether the sale is majority takeaway or majority eat-in?
PN114
No, no?‑‑‑So the majority - all our product is to be purchased.
PN115
That's right?‑‑‑And the majority is eat-in and the minority is takeaway.
PN116
But the predominant activity is firstly the baking of those products that are being sold, isn't that correct?‑‑‑True.
PN117
So that's the predominant activity. Now, if we look at - if I take you to point number 20 of your statement and you talk about front-of-house employees: "Our front-of-house team members are provided with thorough training through a 13-week program that provides them with skills and experience acquired to prepare sandwich bar items from scratch and so on." Now, you're aware I assume of other bakeries within Victoria that would sell items similar to yourselves that people can purchase and take away, yes?‑‑‑Yes.
PN118
Yes. Now, in some of those - looking at the items that people can do here - in those sorts of establishments they could prepare sandwich items from scratch for people to buy and take away?‑‑‑Sure.
PN119
They could cook and prepare soup and salad items in those places and take them away?‑‑‑I assume so.
PN120
They could heat and serve pies and pastry items?‑‑‑Yes.
PN121
Yes, okay. I might just ask you about your photos, B and C, if you've got those there. I assume - looking at the clock it's about - just after quarter-past seven. I assume that's in the morning?‑‑‑Yes.
PN122
Yes, and these two photos show the activity that goes on at that time?‑‑‑Yes.
PN123
They're busily preparing bakery products in both photos?‑‑‑Yes.
*** MARTIN MATASSONI XXN MR BURKE
PN124
I assume from your rosters there would be other bakers that would - sorry, I'll start again. These people would probably have started as early as three o'clock, these three or four?‑‑‑Not necessarily.
PN125
They might have started at seven or thereabouts?‑‑‑I have shifts that range from three in the morning and then we have other shifts that start about five o'clock in the morning and then we have other shifts that start either at six, seven or eight o'clock in the morning.
PN126
Certainly from three o'clock onwards baking has started and goes through the rest of the morning into the afternoon - - -?‑‑‑Yes.
PN127
- - which is what is shown in these two photos, I assume? Now, just then looking at the next photo, which I think is of basically a customer sitting at the table reading a newspaper?‑‑‑Yes. That's our downstairs seating area in the Beechworth.
PN128
Yes, I assume that customer has bought a bakery product? Is that what would be on the plate or on the napkin that's in front of his hand?‑‑‑Yes, yes. He could be waiting for a coffee.
PN129
But he's most importantly got his bakery product and a newspaper, yes. Now, I might just ask you about rosters. You provided rosters for I think about 24 employees in your statement that you provided to the Commission?‑‑‑Yes.
PN130
There's predominantly bakery production but some in front of house. Now, I think you said that the total staff is about 232 that voted for the agreement?‑‑‑Yes.
PN131
Sorry, could be covered by the agreement - so 24 or thereabouts is about 10 per cent of the rosters, I would say; would that be correct? 24 out of 232, roughly?‑‑‑Sure.
PN132
The point I'm trying to get at is obviously these are rosters for only one site, not for the other five?‑‑‑No, from a production element - - -
PN133
And front of house?‑‑‑ - - from a production element the rosters that I've provided are only for two locations, because that's where the predominance of our production is produced for ourselves. So that looks over roughly in the low 20s, 20 employees, from a retail, front-of-house point of view. The modelling is very similar across all our bakeries, from the way that we run our front of house.
*** MARTIN MATASSONI XXN MR BURKE
PN134
Which is really what I was going to ask you: should these be, if you like indicative of rosters for front-of-house in the other five sites?‑‑‑Very similar.
PN135
Yes, okay: so there would be people working 25 hours front of house, 38 hours front of house in the other sites?‑‑‑Sure, yes.
PN136
Some working less: you have 132 part-timers and 98 casuals, based upon your F17 so they could worker lesser shifts, lesser numbers of shifts each week?‑‑‑In some cases it's very similar, the amount of hours that they're working.
PN137
Now, in your roster you have in particular front of house Claudia, who only works on the Sunday in that week?‑‑‑Yes.
PN138
Now, there would be other staff in other sites who would only work on Sundays?‑‑‑Not a lot, no; I'd probably say four or five employees that could that could potentially work a Sunday only and if that's the case it's for a personal reason, for their own reason. Claudia in herself, she works five-and-a-half days in another business and she used to work with us full-time. She loved the business and she wanted to maintain and the only day that she could work was the Sunday only. So I was prepared to let her work on a Sunday.
PN139
We have no objection to her working only on Sunday. But what I'm trying to get at then is where are the rosters that show someone working - who is working on a Sunday and other days, because of your 232 staff, take out the 20 bakers, you have over 200 front-of-house staff?‑‑‑Sure.
PN140
Where are the rosters showing these people doing more than one roster a week?‑‑‑We've got plenty of rosters that I - - -
PN141
Well, where are they?‑‑‑ - - could - - -
PN142
Because they're not here in front of the Commission?‑‑‑No. So 17 per cent of our turnover is on a Sunday so we have many other days that need to be accounted for so the predominant of our turnover is Monday to Friday so that is where the energy is put. So all our - apart from a couple of employees who might only work a Sunday only, the other are working a Saturday and they're also working weekdays.
*** MARTIN MATASSONI XXN MR BURKE
PN143
Well, looking at the front of house that you've given us here, it has nine people on it. This is nine of 10, for example. This is for - these are all the front-of-house staff in the one store; one bakery?‑‑‑The rosters that I have produced and shown as evidence are examples of shifts and how the calculations work against the BOOT. So these ones aren't exact rosters: they're just showing if people are working different hours on different days, how the agreement passes the BOOT test.
PN144
Okay, but Claudia only works on a Sunday?‑‑‑That's correct and you also said Shanae only works on a Sunday and the roster that you got that from shows that she actually works two other days throughout the week.
PN145
Right, but if we stick to Claudia, she only works every Sunday?‑‑‑Most Sundays.
PN146
She would only work a Sunday?‑‑‑Most Sundays.
PN147
Right, because she has the other job. On that basis as from your calculations as you've put on seven of 10, if I take you to that, front of house, which has notes. It says: "A part-time employee working only one Sunday each week is $12.56 worse off against the award." Now, in this case that could be Claudia?‑‑‑That's correct.
PN148
So as she can't work any other days she will be worse off under the agreement compared to the award?‑‑‑Sure.
PN149
Yes, okay. If there are any other employees only working on a Sunday they will be worse off as well compared to the award?‑‑‑Yes.
PN150
Now, did you look at if that Sunday is a public holiday, for example, Easter Sunday - now, how great of a disadvantage is with the penalty rate and the award being 250 per cent?‑‑‑Not with this example, no.
PN151
Right. So with the $12.56 on a public holiday the disadvantage would be higher again, wouldn't it?‑‑‑Sure.
PN152
Yes, right. Now, just on public holidays; if there is another public holiday during the week and a part-timer or casual only works on that day in that week they will also be paid less than the award for that roster, that shift?‑‑‑They're paid what we've stipulated in the agreement.
PN153
Right. In terms of comparing the agreement to the award, though - - -?‑‑‑Yes.
*** MARTIN MATASSONI XXN MR BURKE
PN154
- - if the award has a higher public holiday rate than the award then someone working only on that public holiday in that week will be paid less than the award by comparison?‑‑‑Yes.
PN155
Right, okay. Now, the bakery employees, the production employees who start before 6 am under whichever award - we won't argue about that at the moment - there is an early-morning shift penalty of 12.5 per cent in both awards; you're aware of that?‑‑‑Yes.
PN156
Now, someone who only works before 6 am will be paid less than the award under your new agreement, is that correct?‑‑‑No.
PN157
Well, do your - the agreement rate is I think $22 but the award rate with the 12.5 is $23.15, which was highlighted in our documents, which I should provide to you at some point?‑‑‑Our base rate is $22 in our agreement.
PN158
Yes?‑‑‑And the base rate under the award is $23.19, is that correct?
PN159
Something like that, yes?‑‑‑So that is correct.
PN160
So before 6 am they would be paid less?‑‑‑Yes.
PN161
Yes. Now, I think you highlight that yourself in your - some of your calculations, perhaps I'll come back to. Sorry, I'll get to that now: so if we look at your calculations in one of 10, as we went to before, there's three boxes. There's one says, "New agreement", then there's, "Against award with rotational shifts", and that is where as a group people are $177.80 better off. But quite clearly anyone starting after 6 am Monday to Friday will be better off?‑‑‑yes.
PN162
Is that correct?‑‑‑Yes, that's correct.
PN163
But if we get to the bottom group of people, no late shifts, they will be worse off by $296.92 per week?‑‑‑That's correct.
PN164
So what have you done in - - -
PN165
THE DEPUTY PRESIDENT: Is that a week over a four-month cycle?‑‑‑Four-month cycle.
*** MARTIN MATASSONI XXN MR BURKE
PN166
MR BURKE: Four-month cycle, yes, your Honour - what is there in the agreement to make sure that people on those - won't work those no late shifts and therefore be disadvantaged?‑‑‑Nothing apart from our procedures and policies.
PN167
Right.
PN168
THE DEPUTY PRESIDENT: So do employees work these late shifts?‑‑‑Yes, they do - the majority work the later shifts, which is the Monday to Friday.
PN169
MR BURKE: But there is no protection in the agreement for them to be no worse off?‑‑‑No. That's if they - see, where it's worse off is if they don't do any late shifts at all throughout their - that four-month cycle.
PN170
Right, but there is no protection in the agreement for those people?‑‑‑No.
PN171
No, right. All right - and your calculations are based upon people doing an alternating shift or I think a Saturday one week and a Sunday the next: is that correct?‑‑‑That's correct.
PN172
Yes and if someone doesn't do the alternating roster and did, say, a Tuesday to Saturday would they be financially worse off compared to the award under the agreement?‑‑‑They would be better off.
PN173
In relation to if they did a Sunday, say a Wednesday to Sunday; would they be financially better off or worse off?‑‑‑They'd be worse off.
PN174
Now, you talk about at the bottom: "Rotate staff evenly throughout the year to share the Sunday to Thursday and Tuesday-to-Saturday shifts." Again, what is there in the agreement to provide for that?‑‑‑Nothing.
PN175
Okay. Therefore, if someone for their own particular reason - they might want to play sport on a Saturday and therefore they did the Sunday-to-Thursday shift - they would be financially worse off, is that correct?‑‑‑If they weren't doing the rotation shift.
PN176
Right, okay.
*** MARTIN MATASSONI XXN MR BURKE
PN177
THE DEPUTY PRESIDENT: Just so I understand this, in one of 10 where you've described the worse-off period or early shifts over the four-month cycle - - -?‑‑‑Yes.
PN178
- - do people actually work that or not?‑‑‑They can do, yes, and in this situation now we pay them more so if they're just doing bread only we would - if we're using the calculations on the agreement, if they were only doing five early shifts they would be worse off, yes.
PN179
What do you mean, you pay them more?‑‑‑We would pay them above what our agreement would say.
PN180
So that they wouldn't be worse off?‑‑‑No.
PN181
MR BURKE: That's a - that arrangement you would do yourself if nothing is provided for in the agreement, as we said before, is that correct?‑‑‑That's correct - - -
PN182
Right?‑‑‑ - - and again, it's the same as the days that they prefer to be working based on their sporting commitments and family commitments.
PN183
Right, but so there may be, for example, a family commitment that they couldn't get out of and they might have to do the Sunday-to-Thursday roster and therefore they would be financially disadvantaged?‑‑‑They would be swapping with other employees so they could be having time off.
PN184
But that could be every week, if they did swap that?‑‑‑Sure.
PN185
Yes. Are there people that do that at the moment; that only do the Sunday to Thursday?‑‑‑There is people who only do the Sunday to Thursday and also the Tuesday and Saturday and they do change around.
PN186
But some people may only do Sunday to Thursday?‑‑‑Possibly, yes.
PN187
Yes. I asked you before whether your calculations took into account annual leave loading or public holiday rates. Did you look at any rosters where people do any overtime?‑‑‑Overtime is separate from these calculations so overtime is paid as per the agreement.
*** MARTIN MATASSONI XXN MR BURKE
PN188
Would you agree, though, that the overtime provisions after two hours are less than the provision in the awards?‑‑‑I'm not 100 per cent sure.
PN189
Okay. Now, can I just ask you in relation to the agreement, does it provide for voluntary work on a public holiday?‑‑‑In what way do you mean?
PN190
Specifically - specifically is work on a public holiday voluntary for any employee under the agreement?‑‑‑Yes.
PN191
It's voluntary? So for example, next Tuesday is Cup day?‑‑‑Yes.
PN192
The only employees working on that day will be volunteers?‑‑‑Well, it will be - the rosters would have been produced a couple of weeks prior and it would have been who would normally work on those days and if they want that specific day off they would put it in as a request prior to that.
PN193
Perhaps the point I'm getting to though, specifically, is there anything that says in the agreement that work on a public holiday is voluntary?‑‑‑I'm not too sure: I don't think so.
PN194
But you try to accommodate people, is what you're saying?‑‑‑Yes.
PN195
Now, would you have heard - well, have you - are you aware of the former award provision known as accident make-up pay for when someone is injured at work and receives their normal rate of pay after they're injured? Are you aware of that provision?‑‑‑No.
PN196
No, all right. But there is no such provision in this agreement?‑‑‑I don't believe so.
PN197
Now, in relation to another provision that applies in some other agreements, known as natural disaster leave, where people may be affected by - especially up your way recently - probably rain, floods or natural disasters that employees may take leave to stay home and look after their home? You have such a provision in your agreement?‑‑‑For paid?
PN198
Paid or unpaid?‑‑‑No.
*** MARTIN MATASSONI XXN MR BURKE
PN199
No?‑‑‑Our policy - we look after them from a point of giving them time off when they need it.
PN200
Now, in relation to tea breaks, what would be the - what does the agreement provide for in terms of the length of tea breaks?‑‑‑A 30-minute unpaid break after five hours.
PN201
In terms of a tea break though - say you work for four hours and you have a tea break of, say, 10 or 15 minutes, which would be under some awards?‑‑‑Yes.
PN202
Is there any such tea-break provision in the agreement?‑‑‑No. There's nothing in the agreement from a policy point of view. We allow our staff to be able to take drink - there's a couple of drink stations around the place, there's toilets so we allow them to take the time that they need when they need it.
PN203
Now, I might just ask you - I'm not sure if you have a copy of the agreement with you?‑‑‑No.
PN204
Now, I just wanted to just clarify something, if - in clause 29(b), if you have 29(b): "When required to work on a public holiday employees will be paid double - 200 per cent - of the applicable rate one classification, age and/or years of experience as specified in schedule A of this agreement for all such time worked." I just wanted to clarify - I think for permanents it would be double the rate one, so if we look at just for front of house on page 30, the level one team member, $19.60, so it would be 200 per cent of that, which I think is $39.20?‑‑‑Yes.
PN205
Yes, yes. Now, if we go to the same person who is a casual at level one the rate one is $25.25. Now, can you just confirm that the casual would get double that and therefore $50.50?‑‑‑Yes.
PN206
Yes, thank you. Now, the calculations you have done for front of house, if we looked at, say, 10 of 10; those are all - if you have that with you?‑‑‑Yes.
PN207
Those are based on the part-time rates?‑‑‑That's correct.
PN208
Did you do any calculations for casuals?‑‑‑No.
*** MARTIN MATASSONI XXN MR BURKE
PN209
No?‑‑‑Not with these rosters here, but with the other BOOT calculation we did. They were casuals and part-time were covered there. That was submitted in the early F17 with my original evidence.
PN210
Unfortunately the only calculations I've got to go on are these ones so that's why I'm asking about these. But with casuals I just would like you to confirm, when it comes to a Sunday a casual who only worked on a Sunday would also be paid less under the agreement compared to the relevant award? Is that correct?‑‑‑Yes.
PN211
Okay. So of - so in your F17 you have 98 casuals?‑‑‑Yes.
PN212
Yes?‑‑‑Yes.
PN213
If you'd like to check, I think it's on page 11 at the top, the most recent one, 11 of 11?‑‑‑Yes.
PN214
98 casuals, the previous page 134 part-timers?‑‑‑I don't have the F17.
PN215
You don't?‑‑‑Yes, sure.
PN216
Now, something I haven't raised with you yet - I might just ask you now - that in terms of the number of people that voted on the agreement or covered by the agreement is 232. There is a discrepancy, a small one, that the 134 part-timers and the 98 casuals equate to 232?‑‑‑Yes.
PN217
You've got rosters here for people who are doing 38 hours a week?‑‑‑Yes.
PN218
So do you have more than 232 people?‑‑‑No, we have 232 people. The part-time that I've listed also accounts for some full-time. When I took the numbers out of PAYPAC system it didn't separate the full-time and the part-time. We have about 20 full-times. It just reads in the PAYPAC as present employees and casual employees.
PN219
Looking at this you have at least two doing front end: I don't know if it's Ase - A-S-E - and Emile doing 38 hours?‑‑‑Again, they're just examples of an individual working 38 hours. This is how much they would be paid on our agreement against the award.
*** MARTIN MATASSONI XXN MR BURKE
PN220
So there might be, again, examples of rosters where someone worked a Sunday to Thursday and would be disadvantaged like with the bakers, is that correct?‑‑‑No, if they're working a Sunday to Thursday they're not disadvantaged. Front of house, they're not disadvantaged.
PN221
Including casuals?‑‑‑Well, the roster that I have - the rosters that I've produced are only for part-time. The casuals are based on the per cent above and shown in those other calculations. So I'll assume, yes, they are better off.
PN222
Shown in which calculations?‑‑‑When we lodged the original F17 three - six weeks ago, the BOOT calculations show all areas of front-of-house production, transport, clerical and how the rates are worked out.
PN223
Right. Could I ask you then why if - in your statement here you didn't include all of those here and you've only got indicative rosters, if you like, for bakery production and front of house?‑‑‑Sure, well, the clerical operate between nine and five Monday to Friday and I have one full-time and two part-time in that area and the transportation I have one full-time and three part-timers.
PN224
So not a lot of - - -?‑‑‑Again, they operate within the span of hours, so I showed the focus on the front of house and the production.
PN225
But I'd say not a lot of rosters that you could have provided to the union to have a look at because otherwise we have to make our submissions as we have, to say that we think those employees may be disadvantaged?‑‑‑Sure - we submitted the BOOT test calculation to show how our employees were better off.
PN226
Okay. Now, I might just - you mentioned before Shanae, working on other days in that roster: I think we mentioned some other employees; I think Campbell is one?‑‑‑Yes.
PN227
And Jay?‑‑‑Yes.
PN228
And a Jamie?‑‑‑Yes.
PN229
Now, they worked only on a Sunday in that roster?‑‑‑Shanae worked - - -
PN230
Not Shanae - Jamie?‑‑‑Jamie only works on a Sunday, yes.
*** MARTIN MATASSONI XXN MR BURKE
PN231
Jay?‑‑‑He works Sundays and some Saturdays but on that roster that you looked at he was working a Sunday only.
PN232
Right, and Campbell?‑‑‑Campbell - he was not shown on that roster.
PN233
But there is at least three others who work only on a Sunday in that week and sometimes only work a Sunday?‑‑‑Jay, Campbell, are young juniors and they will pick up days through the week and school holidays and all those periods. So the one roster that you might have - that you looked at might have shown that they only worked that one Sunday. They might not have been available to work any other day that week.
PN234
But that's the only shift that they worked in that week, which was Sunday?‑‑‑For that one week.
PN235
Yes, right. Now, as we said - and I'll get you to repeat it - in that week compared to the award they would both be financially disadvantaged under the agreement?‑‑‑Yes.
PN236
Okay. Now, going forward into the agreement what provision will be there to protect someone like that if they're only going to work on a Sunday?‑‑‑None.
PN237
Sorry?‑‑‑There's none.
PN238
Thank you. Now, if we look at supervisors, you have in your agreement - I think you have your agreement with you - a team supervisor?‑‑‑Yes.
PN239
They have a definition on page 11 at 13(b)(ii), if you have that: "A team supervisor means an employee who has supervisor responsibility over employees classified as team members and may have supervision of front-of-house operations of a particular location." So how many team supervisors do you have?‑‑‑Maybe 18.
PN240
18, so roughly three per site or something like that?‑‑‑Right.
PN241
Are any of them mentioned in the rosters that you've got here in June?‑‑‑No, no.
PN242
Okay. Do you know typically what sort of rosters they might work?‑‑‑Generally through the day - so any day of the seven days they will work.
*** MARTIN MATASSONI XXN MR BURKE
PN243
Would they possibly only work on a Sunday, being a part-time or a casual?‑‑‑No, I wouldn't think so.
PN244
You wouldn't think so or you're sure?‑‑‑No.
PN245
Now, what provision is there in the agreement, again, for those people to not only work on a Sunday but to have some other benefit?‑‑‑If they're to work a Sunday only there's no protection for them.
PN246
Okay. Now, looking at the title and the classification, are they - they're a senior member, a senior employee, would they be?‑‑‑Yes.
PN247
They would be supervising the front-of-house employees that work there?‑‑‑Yes.
PN248
Are they responsible for the work that they do during that shift?‑‑‑Yes.
PN249
There's no - above them, what is there, a manager of the store, if you like?‑‑‑Yes, a store manager.
PN250
Okay, but the supervisor - their responsibility is to look after these employees. If that's the case, I'm wondering how you decided to classify them as a level three in the restaurant award, remembering again that we don't agree with that - why you say it's a level three and not a level five? Perhaps to help, Mr Matassoni have a copy of the award which he can look at?
PN251
THE DEPUTY PRESIDENT: Are you disputing the actual classifications of these team leaders?
*** MARTIN MATASSONI XXN MR BURKE
PN252
MR BURKE: Well, I'm asking why they're deemed to be a three under the award and not a five, because if we look at the definition in the award, the term, "supervisor", appears at level five. "Food and beverage supervisor", means an employee who has the appropriate level of training including a supervisory course and has the responsibility for supervision, training and coordination of food and beverage staff", and that seems to be the type of people that Mr Matassoni is talking about, who are these 18 senior employees. We've highlighted that in our submissions. So as I was asking Mr Matassoni, why if we look at the award - we'll take you to page 44 and it's got (b)(2)(iv), and this is under the classifications of food and beverage: "Food and beverage supervisor means an employee who has the appropriate level of training, including a supervisory course, and who has the responsibility for supervision, training and coordination of food and beverage staff." I assume you want these people to be properly trained themselves. I assume that's the case? You don't just have anyone in this role: you have 18 senior employees, is that correct?‑‑‑In some cases, at some times, yes.
PN253
But you said before that the 18 are senior employees?‑‑‑Yes.
PN254
I would expect that you wold want them to be appropriately trained themselves so that they could carry out their functions?‑‑‑We will train them ourselves and bring them through.
PN255
Right?‑‑‑So they're assisting in the training and supervision of food and beverage attendants. That's also in point 3.
PN256
So are they therefore a supervisor? Why would you have them termed as supervisor if they're merely assisting these people?‑‑‑Sure.
PN257
I'm asking you that question: why would you have that term, "supervisor", when they're, if you like, assisting?‑‑‑Well, training and supervision.
PN258
Well, you have the term, "team supervisor." The award has a term of, "supervisor." Again, we don't agree it's the right award but if this is the award - - -
PN259
THE DEPUTY PRESIDENT: Do you have a copy of the award there?
PN260
MR BURKE: I have and I have a spare - I have my own copy and the one I've given to Mr Matassoni. I'm happy to give you my copy in the meantime.
PN261
THE DEPUTY PRESIDENT: Well, you need it though, don't you?
PN262
MR BURKE: Well, I've asked my questions for now. I'll try and keep going. Do you take my point: you have in your agreement the term, "team supervisor"?‑‑‑Sure, yes, we do.
PN263
You say that the appropriate award to look at is the food and beverage award?‑‑‑That's the one that we've used, yes.
*** MARTIN MATASSONI XXN MR BURKE
PN264
Yes, and if you look at (b)(2)(iv), that's where the team, "supervisor", appears and that's the person that has the same supervisory responsibilities over employees classified as team members, is that correct?‑‑‑Yes.
PN265
Right, so again I ask you why would you have them classified as a three when that person merely assists someone and not as a five?‑‑‑I can't answer that question.
PN266
Okay, thank you.
PN267
THE DEPUTY PRESIDENT: I'm looking at the agreement. It has at page 30, "Team supervisor level two."
PN268
MR BURKE: That's the definition in the agreement. In the agreement they're a level two. In the award they're a grade five, level five.
PN269
THE DEPUTY PRESIDENT: You were just talking about three.
PN270
MR BURKE: Yes, in the comparison between the award and the agreement the company says it's the three we compare to the supervisor and we say no, it's the five in the award you compare to the supervisor because the award classification for this level of supervisor is level five, grade five, if that clarifies it for the Commission. I only have one copy of this award, which I might provide it first to Mr Matassoni after I've asked the question. But in terms of drivers in your F17 you say that the drivers - the level one driver in the agreement is the level one in the transport award and the level two in the agreement is level two in the award, so they match up. I might just read it out first and then provide the award to Mr Matassoni but under the award, at page 53 under schedule C, classification structure, a grade two is the driver of a rigid vehicle, including a motorcycle, not exceeding 4.5 km gross vehicle mass. Then a three is the driver of two actual axel rigid vehicle or on any other rigid vehicle exceeding 4.5 tonnes but not exceeding 13.9 tonnes gross vehicle mass. So perhaps if I can provide that to the witness to check - it's on the other page of schedule C. So you can see that, can you, Mr Matassoni, that there's the - so that the employee whose primary job is to drive a vehicle which is not in excess of 4.5 tonne gross vehicle mass - that they are two in the award?‑‑‑So we've - in our agreement we've specified a grade one being someone who would drive a four-and-a-half tonne, which would be a level two in that case and in excess of a six-and-a-half tonne, we've classed it as a grade two, which would be a grade three in that case.
*** MARTIN MATASSONI XXN MR BURKE
PN271
I'm not wishing to make a big point about it other than to point out that part of the F17 is not correct. Did you - the calculations you did, therefore, which I don't have, for the drivers, were they based upon the level one and two in the award or the level two and three in the award?‑‑‑The rates we've provided are above the award rate.
PN272
You have to do a comparison between the award and the agreement so did you do for the first driver in the agreement, who is - should be a level two in the award, did you do comparisons against level two in the award for those drivers?‑‑‑Yes.
PN273
You did? Right. You can provide those to - they're not provided to me?‑‑‑We had sent through all correspondence to yourself and the Commission when I submitted all the original information and it had the BOOT calculation.
PN274
With respect, I don't think I received it. It wasn't again attached to the F17 when it came on Friday. All I have is - - -?‑‑‑Sure - no, the original documentation that we submitted - I'm not sure of the date, I don't have my paperwork with me - - -
PN275
Sure, yes?‑‑‑ - - but the original cut-off date that we had, it was supplied then, showing all classifications, full-time, part-time, casuals.
PN276
It was attached to the F17?‑‑‑Yes, the original F17.
PN277
Right, yes, well, I don't think that was provided to the union. I'll have to go back and check but when I received it it was missing two pages to begin with and then a further two pages were provided but the only other thing that came was your witness statement?‑‑‑Sure.
PN278
All right, okay. So - but in terms of the F17 the classifications should be the ones that we've now discussed?‑‑‑Sure, yes.
PN279
Does the Commission wish to see the award as well?
PN280
THE DEPUTY PRESIDENT: Yes.
PN281
MR BURKE: Okay. I think it's schedule C in the award, Deputy President, and at the moment in the F17 the award level for the first driver is highlighted as a one and if you look there there are no drivers covered by level one, so obviously they would have to be at the next level, which is two, and then the larger vehicle is a level three, as Mr Matassoni has confirmed. I have no further questions for the witness.
*** MARTIN MATASSONI XXN MR BURKE
PN282
THE DEPUTY PRESIDENT: Mr Matassoni, you were taken to a couple of the examples where the annual leave loading and consideration of public holidays falling in a roster period - I think you said you haven't undertaken an exercise in respect to including those; is that what you said?‑‑‑The calculations for annual leave loading is in the other original document that shows where we passed the BOOT test, how all the calculations were worked out, so across all - - -
PN283
So I think there is a standard percentage, isn't there, for annual leave loading?‑‑‑Yes.
PN284
That demonstrates - - -?‑‑‑That is factored in - our hourly rate is factored in with the annual leave loading.
PN285
Right, and what about where public holidays might fall?‑‑‑Our public holidays in our agreement is 200 per cent. The award is 250 per cent. We have put some of the 50 per cent into the hourly rates.
PN286
You're still confident that you meet the BOOT in those circumstances?‑‑‑Based on the calculator that we've used, yes.
PN287
All right, thank you.
PN288
MR DUC: Thank you, your Honour. Might I just check, your Honour, that the Commission does have the original BOOT calculations that were filed with the original agreement F16 and F17? I will have Mr McPherson just check his emails to make sure that the union was served with it.
PN289
THE DEPUTY PRESIDENT: What do they look like?
PN290
MR DUC: It's a Beechworth Bakery BOOT calculations remodelling including the national wage case decision. It's an Excel spreadsheet which has six or seven tables attached to it; tabs down the bottom that have the front-of-house modelling, production modelling, transport modelling.
PN291
THE DEPUTY PRESIDENT: Well, I'm looking at the original documents at the F17. It just has agreement rates and that's it. No, we don't have that.
*** MARTIN MATASSONI XXN MR BURKE
PN292
MR DUC: Yes, I can do that. I would perhaps need just a minute. I've got to hook it up to the Internet. I'll use my phone to do that. Your Honour, I am able to provide a copy of those calculations. They're important calculations. I understood they had been provided to the Commission when the originating application of the F16 and the F17 were sent through with a copy of the finalised and signed agreement. If that's our oversight I'd seek a five-minute adjournment so I could then send them through to your associate so we can be working and if this is the case I do apologise to my friend for not providing these calculations earlier.
PN293
THE DEPUTY PRESIDENT: Well, we certainly don't have them or anything that looks anything remotely like them. We have the more recent ones, of course - - -
PN294
MR DUC: Yes.
PN295
THE DEPUTY PRESIDENT: - - and the attachments to Mr Matassoni's statement but nothing originating.
PN296
MR DUC: Certainly - I'll double-check that they were sent through. But it appears that they might not have been but these are the calculations that the applicant relies on for the purpose of today's proceeding. So if I could be permitted a five-minute adjournment I'll organise to send those.
PN297
THE DEPUTY PRESIDENT: Well, while you're doing that could I ask both the parties to consider what - this is putting aside the question of the award coverage or the appropriate reference instrument coverage - Deputy President Bull recently gave a decision in Glassons enterprise agreement. The SDA was involved. There were identification there of persons who may have been said to have been worse off because of their working patterns and it is apparent from Mr Matassoni's frank and helpful evidence that there may be occasions where people, particularly who work on Sundays only - I forget the lady's name but mainly her - who would fit into that category and there may be even persons who work the early shifts who might fit into that category.
PN298
His Honour provided a draft undertaking which is essentially a reconciliation provision. It appears that his Honour provided that to the parties and it was accepted. I can provide you a copy of the decision. I'm just wondering - and again, this of course is dependent upon which award applies but that will necessarily be a decision of the Commission. But if it gets to it in either case, wouldn't that be a way forward?
*** MARTIN MATASSONI XXN MR BURKE
PN299
MR DUC: I certainly do have authority to provide an undertaking to the Commission with regard to various matters and I was going to address some of that with Mr Matassoni in re-examination but certainly, the applicant would be looking to provide undertakings.
PN300
THE DEPUTY PRESIDENT: Are you familiar with that decision?
PN301
MR BURKE: I'm aware there is a decision; I haven't read it, though.
PN302
THE DEPUTY PRESIDENT: Concerning the SDA - I don't even think were bargaining agents but appeared by reason of interest.
PN303
MR BURKE: Yes, I read briefly about it last week. I didn't look to any further details at that time. Sorry, Deputy President; I concentrated on some other decisions in the meantime.
PN304
THE DEPUTY PRESIDENT: Yes, yes.
PN305
MR BURKE: But I would say, depending on what undertakings are given, we would be prepared to look at those. We think there are some deficiencies that could be rectified with undertakings but they may not be ones that will be agreed to by the other side but we'll discuss it.
THE DEPUTY PRESIDENT: Well, this is often a moving feast, as you're no doubt aware. So if you might take a little - I'll take the morning adjournment now and perhaps resume about quarter to but if you - that award of course was referable in the Glassons decision to the retail industry award. All right, I'll take the morning adjournment now, thank you.
<THE WITNESS WITHDREW [11.26 AM]
SHORT ADJOURNMENT [11.26 AM]
RESUMED [11.51 AM]
AUDIO MALFUNCTION [11.51 AM]
PN307
MR DUC: - - - FWC.gov.au, so those calculations had been sent and your associate has printed off a copy of those. They're the calculations that the applicant will rely on in relation to the passage of the BOOT.
PN308
THE DEPUTY PRESIDENT: So what are the more recent calculations?
*** MARTIN MATASSONI XXN MR BURKE
PN309
MR DUC: The more recent calculations that were done by Mr Matassoni were really in relation to the issue of Coles v Hart that was identified by the union. So Mr Matassoni, under direction from his advisors, did some further calculations in relation to individual calculations and rosters in order to conclude whether individual employees were better off overall than under the award. So those calculations were really done in preparation for a Coles v Hart argument, if I can put it like that, to show that staff were going to be better off overall.
PN310
However, it's the first calculations that were provided, using the Commission's own calculator - using the test that the Commission uses - that were originally provided as early as 27 June.
PN311
THE DEPUTY PRESIDENT: The union didn't have these?
PN312
MR DUC: I believe they were sent those. Mr Mark Neale, from the union, who is the bargaining representative has been included in all the correspondence and I did check with Mr McPherson during the break to see whether that was the case and Mr Neale was sent all the documents that the Commission had received.
PN313
THE DEPUTY PRESIDENT: All right, is Mr Matassoni still in the box?
MR DUC: Yes.
<MARTIN MATASSONI, RECALLED [11.54 AM]
RE-EXAMINATION BY MR DUC [11.54 AM]
PN315
MR DUC: Mr Matassoni, you were asked some questions concerning the predominant activity of your business. Could you elaborate on what you consider to be the predominant activity of your business?‑‑‑We are a bakery/caf /restaurant. We have a lot of seating. Our predominant is sit-down eating. We have a - we do have a part of our business that is takeaway, being takeaway coffees, takeaway all our produce but the predominant is eat-in. We have large seating. We produce our own product.
PN316
Can you describe out of your bakeries, how many have seating?‑‑‑They all have seating. They range at different levels of seating but the minimum is 60 seats in one and then the others range from 200 upwards.
*** MARTIN MATASSONI RXN MR DUC
PN317
Can you describe for the Commission where the majority of your business is generated from?‑‑‑Our biggest bakery is Beechworth. The other four are all very similar in turnover, in sales. We produce our own - predominantly produce our own product in our Beechworth and Echuca location, in their bake house and we transport it to our other stores.
PN318
Predominantly, if you had to say what proportion was between takeaway as described by Mr Burke and eat-in, what would you say the proportion is?‑‑‑I think within my witness statement - it's close to 70 per cent is eat-in.
PN319
If I was to ask you what industry are you in, what would your answer be?‑‑‑We'd be in the restaurant industry.
PN320
Thank you, I've got no further questions, your Honour.
PN321
THE DEPUTY PRESIDENT: Just back to these documents that were provided: what is the difference between - I've got front-of-house intro on the first, then another front-of-house intro but they're at different rates: $23.40 and $25.75. I'm not quite sure what the - what's the difference between the two?
PN322
MR DUC: I'm sorry, your Honour: can you take me again to - the front-of-house modelling, full-time and part-time, and it has the intro at the top.
PN323
THE DEPUTY PRESIDENT: Where does it say full-time and part-time?
PN324
MR DUC: I'm sorry: there's a tab down the bottom which might not necessarily express that. It's says FOH modelling, FT and PT, which comes through on the Excel spreadsheet version on the computer. I'm not sure if it gets through to your Honour on the printed page, though.
PN325
THE DEPUTY PRESIDENT: Well, you tell me what the difference is.
PN326
MR DUC: The first version, your Honour, with the rates of $18.60 and $23.40, is the full-time and part-time rate. The second document - - -
PN327
THE DEPUTY PRESIDENT: Why don't you make it clear?
PN328
MR DUC: I'm sorry, your Honour. It is not as clear as it could be, going from the Excel spreadsheet to the printed version.
*** MARTIN MATASSONI RXN MR DUC
PN329
THE DEPUTY PRESIDENT: And what is the other one?
PN330
MR DUC: One is - the first one is full-time and part-time. The second document that you've got is the casual.
PN331
THE DEPUTY PRESIDENT: The casual one being $25.75, is that it?
PN332
MR DUC: That's correct.
PN333
THE DEPUTY PRESIDENT: What is the $18.60 in the other one?
PN334
MR DUC: The $18.60 is the rate that is the base rate within the enterprise agreement?‑‑‑Or an introductory member; so a new employee in their first three months.
PN335
THE DEPUTY PRESIDENT: Right, and what's $23.40 then?‑‑‑$23.50, is that - - -
PN336
I'm looking at front-of-house intro, agreement rate one, $18.60, agreement rate two $23.40?‑‑‑That's the weekend - - -
PN337
MR DUC: That is the weekend penalty rate, so the way the agreement is structured is into two rates: the rate one, which is payable during the week and rate two, which is payable during the weekend.
PN338
THE DEPUTY PRESIDENT: So the difference is 53 cents, is it?
PN339
MR DUC: That's correct.
PN340
THE DEPUTY PRESIDENT: Coming back to my earlier questions, do these rates include the public holidays which are - they're seen at 200 per cent, yes, and the 50 per cent you said, was it included?‑‑‑Yes.
PN341
The annual leave loading?‑‑‑Yes, so the calculator - that spreadsheet on the right-hand side shows the base rates against the award that includes annual leave loading and public holidays. Then on the left-hand side that sheet shows how our rates works out against the award.
*** MARTIN MATASSONI RXN MR DUC
PN342
Right. In all cases you say that it's - the employees are better off, do you?‑‑‑Yes.
PN343
All right?‑‑‑Except in the case where Tony has highlighted: if they work only a Sunday, it doesn't work.
PN344
Yes, yes, I understand that?‑‑‑It's not the way that - when we looked at the agreement to doing it.
Well, Mr Burke, is there further questions that arise from these documents that you now have?
FURTHER CROSS-EXAMINATION BY MR BURKE [12.02 PM]
PN346
MR BURKE: There probably are, Deputy President, but I think the main question was what Mr Matassoni just said; that someone who only works on a Sunday will be worse off. That would also be the case if someone only worked a public holiday in one week, they'd be worse off?‑‑‑If an employee only ever works one Sunday - - -
PN347
Sunday we're clear on?‑‑‑Yes.
PN348
On a Sunday only, you're worse off. We'll pick another day - we'll pick next Tuesday: Cup day in Melbourne, in Victoria. The part-timer works only next Tuesday in that week. They'll be worse off under the agreement compared to the award, is that correct?‑‑‑If they only ever work that Tuesday.
PN349
Yes?‑‑‑If they don't work any other days.
PN350
That's right: that's the question I'm putting to you?‑‑‑But we don't have - that's not what our employment is. Our people - - -
PN351
Well - - -?‑‑‑ - - are working throughout the week.
PN352
As I put to you before, there are no rosters that you've shown that show that. There's only about 15 employees you've shown rosters for. So I think it is - and as I've said to you, and I don't think you dispute, if it's a Sunday there is an issue and Easter Sunday is a public holiday in both Victoria and NSW, is that correct?‑‑‑Yes.
*** MARTIN MATASSONI FXXN MR BURKE
PN353
So there will always be someone who's - Claudia, for example, will be affected every year on every Sunday, either a normal day or a public holiday. Now, also, that would be the same with the other calculations you've done for bakery production staff, where they work before 6 am. They would also be worse off under these calculations, wouldn't they? The award has a penalty of 12.5 - - -?‑‑‑Yes.
PN354
- - it's about 23.90 or 23.19?‑‑‑Yes.
PN355
Your agreement is only paying 22 for the whole time?‑‑‑Yes.
PN356
So when you work those times only you will be worse off?‑‑‑Yes, if you're not working any other shifts.
PN357
Yes, exactly; I accept that but I'm just wanting to be clear on that?‑‑‑Not all our shifts are before 6 am.
PN358
I'm sure they're not?‑‑‑As you can see by the photos our work environment is very tight and we have to spread them throughout the day.
PN359
I'm sure?‑‑‑So they have flexibility to be able to work later on in the day.
PN360
Yes, we accept that. Now, did you do these calculations yourself?‑‑‑No, I did them alongside with Hugh McPherson.
PN361
Okay. You didn't find the need to include any allowances at all?‑‑‑Being - we've - - -
PN362
Any of the award allowances that might apply?‑‑‑It's listed in that calculation what allowances were included and at what rates.
PN363
If someone had done overtime, a meal allowance, that wasn't included?‑‑‑The meal allowance is - we supply all their meals.
PN364
I think the award might provide an allowance if someone works, say, more than one hour of overtime under certainly the GRIA - the retail award. You didn't take any of those allowances into consideration?‑‑‑We supply all meals for all their breaks.
*** MARTIN MATASSONI FXXN MR BURKE
PN365
Okay. Well, Deputy President, without going through this in great detail, we're not sure that it changes what we've put already and what we've asked Mr Matassoni about already in relation to our calculations as well.
THE DEPUTY PRESIDENT: All right. Thank you, you may step down, Mr Matassoni.
<THE WITNESS WITHDREW [12.06 PM]
PN367
THE DEPUTY PRESIDENT: Is that your evidence?
PN368
MR DUC: Thank you, your Honour; yes.
PN369
THE DEPUTY PRESIDENT: Are you ready to proceed?
PN370
MR DUC: Thank you, your Honour. Your Honour, firstly if I could commence by saying that looking at the undertaking that was provided in the Glassons decision from Deputy President Bull, the applicant would be looking to provide an undertaking in line with paragraph 18 of that decision. The period of time in which we would be undertaking to do that calculation would be every quarter: every three months we would do that calculation. If the Commission is not minded to accept that undertaking we would be willing to look at a lesser period of time. However, that is what we would be looking to offer at this stage.
PN371
Your Honour, in relation to the issue of the award coverage, which has featured somewhat today, the evidence from Mr Matassoni indicates that the business that he runs is a caf and the caf is run at six sites. Reviewing the evidence, what you will find if you attend one of these cafes is staff that wait tables, that serve customers at tables, that provide meals to the table, which is a caf -style of operation. Mr Burke was asking questions regarding whether various products were takeaway and of course we concede and Mr Matassoni did concede that a lot of products can be bought from the caf and taken away. Cafes operate in that fashion as well. Mr Matassoni's business is a caf where customers go into the shop, sit down, order something from the menu, get served at the table by the wait staff, by the front-of-house staff and then products are cleared away at the end of the day. That fits within the definition of what a caf is under the restaurant award. The industry in which Mr Matassoni says that he is involved in is the restaurant industry, not the retail industry.
*** MARTIN MATASSONI FXXN MR BURKE
PN372
Mr Burke asked a question of Mr Matassoni concerning what was the definition under the general retail industry award of when a bakery shop is considered to be a bakery shop. In the classification structure in the GRIA describes the coverage as - the general retail industry means the sale or hire of goods or services to final consumers for personal, household or business consumption, including - and then five dot points down:
PN373
- - - bakery shops, where the predominant activity is baking products for sale on the premises.
PN374
Now, we say that a shop, a bakery shop in that regard is all of the items that are sold at a shop are taken away for consumption. A retail business under the general retail industry award would be, for example, your Baker's Delight, your Brumbies, your Vietnamese bakery in a shopping strip where items are purchased and immediately taken away. The common sense test would indicate that that is a shop whereas the common sense test would indicate for Mr Matassoni's business that if you were attending it you were going to a caf for service on the premises, on the site. You choose items, you select from the menu and you sit there and eat and drink your products on the site.
PN375
Mr Matassoni's business also includes some wholesale business as well. It's a large business. It's not just a shop. It covers not only the caf side of things but also provides wholesale to other regional bakeries and institutions around Victoria. So we say taking into account the ordinary language of the clause, Mr Matassoni's business couldn't be a bakery shop. It's a caf and that is how the evidence has fallen today. The SDA have provided no evidence to gainsay that particular interpretation.
PN376
THE DEPUTY PRESIDENT: Has this agreement been a replacement agreement for one that's expired?
PN377
MR DUC: Yes. Yes, Beechworth has acted under an agreement that's been in place for several years now and we made mention of that within the affidavit; the witness statement, I should say, and that is at paragraph 25, your Honour.
PN378
THE DEPUTY PRESIDENT: Yes.
PN379
MR DUC: It was a collective agreement from 2008 and therefore based on a series of previous Victorian awards that were in place. We say, your Honour, in relation to the menu that's been provided, that is a significant menu that is not - you would not necessarily find in a shop. We say the products are made on site: that goes without saying, that the products are made on site by production staff covered by the food, beverage and production award and those employees are not only producing products for sale at the shop for consumption in the shop; they're producing for businesses outside of Mr Matassoni's.
PN380
That takes the bakers outside of the GRIA, because they're not only making products for sale predominantly on site to be taken away. The evidence also includes documents at annexure F, which indicate that Mr Matassoni's business is considered to be a caf and a restaurant for workers' compensation purposes. On page 2 of the first attachment, the document provided from Allianz, indicates that the caf and restaurants rate is payable for workers' compensation purposes. They're my submissions, your Honour, in relation to the award-coverage issue.
PN381
Briefly in relation to the BOOT test, we have already proffered an undertaking. It might be otiose also to indicate that from the applicant's position, the way that the SDA has cherry-picked employees - Claudia, Lorraine, Shanae, et cetera - that approach of a line-by-line, taking into account no other benefits is not the right approach to be taken and again, it would be otiose to point out the Commission's decision as presently constituted in the Australian Rail Track case of two weeks ago, which indicated at paragraph 94 that it would be impossible for the tribunal and applicants as well to analyse each employee's current and prospective roster and it would be an illogical and impossible nightmare. I think that has been demonstrated by the SDA today, where the questions to Mr Matassoni have been, "What if? What if an employee only works on the public holiday next week?" We could have been here all day listening to the, "what if", scenario.
PN382
The position of the applicant is we've provided an enterprise agreement. We've done the BOOT test, using the Commission's own calculator. We rely on those to indicate that the restaurant industry award applies and is the applicable instrument.
PN383
Unless there are any other matters regarding some of the procedural issues that we've covered in the F17 regarding the pre-approval steps, they are the submissions of the applicant.
PN384
THE DEPUTY PRESIDENT: What about the issue of the classifications of team supervisors and drivers?
PN385
MR DUC: The drivers is conceded and an undertaking will go to the fact that the driver - first driver, the level one - should be paid at the level two rate under the road transport award. That rate will go from $18.75. The level two rate is $19.22. The level three rate, $19.22, will go to $19.46. That's the current level three rate. In relation to team supervisor, Mr Matassoni's evidence is that they're not a true supervisor in accordance with the award definition. The award definition says that a level five under the restaurant award provides supervision, training and coordination and the evidence is from Mr Matassoni is that they might be termed supervisor but they do not provide that level of duties that's provided for in level five.
PN386
They provide assistance in relation to training and that's the wording that is used in relation to level three under the restaurant industry award. So we say in my submission, your Honour, the team supervisor is incorrectly labelled as a supervisor. They're being paid correctly in accordance with the award classification.
PN387
THE DEPUTY PRESIDENT: At level three?
PN388
MR DUC: At level three, not level five.
PN389
THE DEPUTY PRESIDENT: Well, I come back to this because I'm still unclear as to the actual classifications in the agreement where it talks about supervisors (level two) - page 30, page 31 - - -
PN390
MR DUC: Yes, level two - we can't support that a level two team supervisor would be paid at the level two. I think that's just referring to the agreement classification rather than the rate that is payable. But we would submit that the appropriate rate for a person providing the team supervisor duties - not conceding they're supervisors - is level three. Level two is just a classification under the agreement, your Honour.
PN391
THE DEPUTY PRESIDENT: But the rate is level three?
PN392
MR DUC: The rate is level three.
PN393
THE DEPUTY PRESIDENT: All right, thank you.
PN394
MR DUC: With the Commission's appreciation - if I could just add one point to that?
PN395
THE DEPUTY PRESIDENT: Yes.
PN396
MR DUC: Your Honour, that is that the term, "team supervisor", is the title of the position in the 2008 agreement. So preceding the actual making of the modern award, the terminology was used operationally and hence why it's been carried over to the making of the new agreement.
PN397
THE DEPUTY PRESIDENT: All right, thank you for that explanation.
PN398
MR BURKE: I was wondering, Deputy President, if we could have a short adjournment, if I could have a - go to the bathroom, please?
PN399
THE DEPUTY PRESIDENT: Sure, well, I won't go off the bench.
PN400
MR BURKE: Thank you.
SHORT ADJOURNMENT [12.21 PM]
RESUMED [12.23 PM]
PN401
MR BURKE: Your Honour, as we said in our outline that we say the agreement does not pass the BOOT in accordance with the Act and, in particular, the recent Full Bench decision in Hart v Coles and the subsequent decisions and we refer to a further decision of Gregory C in Integrated Protective Services Pty Ltd. We say that we have provided calculations to demonstrate that the agreement fails the BOOT.
PN402
We submit the agreement fails as per section 193 of the Act. The agreement can only be approved if the Commission is satisfied as at the test time that each award-covered employee would be better off over all if the agreement applied than if the relevant modern award applied.
PN403
THE DEPUTY PRESIDENT: I would like you to explain to me, because nobody has ever been able to, how do you decide what a prospective employee's roster is going to be when you don't even know who the employee is or what their preferences are?
PN404
MR BURKE: I think if you look at this business there are people, for example, who work - they're either part time or casual, some of them seem to be full time, and some have been working only on a single day, that's foreseeable in the future and if that happens to be a Sunday or in the week when a public holiday falls that person will be disadvantaged.
PN405
THE DEPUTY PRESIDENT: That is not my question. You have already established that persons are - and I forget the lady's name again.
PN406
MR BURKE: Claudia.
PN407
THE DEPUTY PRESIDENT: Claudia who works only on a Sunday for her own particular reasons, that she would be worse off. But that is not a prospective employee.
PN408
MR BURKE: No, but someone like her we say would work in one of the sites again. There are six of them. Having some many casuals - - -
PN409
THE DEPUTY PRESIDENT: But that would require the Commission to say to an employer "You must provide me with rosters prospectively for employees that you don't even have".
PN410
MR BURKE: Well, I can only take the Commission to the Act.
PN411
THE DEPUTY PRESIDENT: I know what the Act says. You have seen what I have said about it.
PN412
MR BURKE: Yes. I was going to say something about that as well but obviously we say that the Full Bench decision should be followed and that obviously without appropriate - - -
PN413
THE DEPUTY PRESIDENT: In the case that you are referring to and that Mr Duc referred me to, I wasn't required to follow that Full Bench. Those were obiter observations I was making.
PN414
MR BURKE: Obviously, we say the Full Bench decision is the decision to be followed in this matter.
PN415
THE DEPUTY PRESIDENT: The words of the explanatory memorandum have absolutely no relevance at all, do they?
PN416
MR BURKE: I wasn't specifically involved in the Full Bench decision with Hart v Coles but obviously the Bench in that case came to the decision it did, it's the decision we say we should follow.
PN417
THE DEPUTY PRESIDENT: So you - that is the union - expects this Commission in a case of an organisation like Coles or Woolworths or any of the other major suppliers to look at thousands and thousands of rosters, not only of existing employees but ask the employer to "give us rosters" of what might be for prospective employees and they make an assessment at the test time.
PN418
MR BURKE: Yes, that seems to be the way the Full Bench has moved things, Your Honour, and it has - - -
PN419
THE DEPUTY PRESIDENT: It is certainly not how the McDonalds' case was approached and your union was involved in that.
PN420
MR BURKE: Yes, and that was - the Full Bench, I think as the union has said, is perhaps a different decision to decisions of the past.
PN421
THE DEPUTY PRESIDENT: Well, which one should be followed?
PN422
MR BURKE: The Full Bench.
PN423
THE DEPUTY PRESIDENT: So is McDonalds and, indeed, the presiding member in both of them was the same, which is rather striking.
PN424
MR BURKE: I think that we need to stick to the recent Full Bench decision and, as I said, others - - -
PN425
THE DEPUTY PRESIDENT: That is not how the Commission works. The Commission is bound to accept decisions of the Full Bench. It doesn't say you have got to cherry pick which one you prefer.
PN426
MR BURKE: Other Commissioners, as I've said, have followed that decision as well in recent times, Gregory C being one, so we say that that is now the way things are headed. Perhaps in the past the Commission looked at things slightly differently. We think the test is clearer now in that respect when it comes to considering - - -
PN427
THE DEPUTY PRESIDENT: Your organisation looked at it differently, too, because you were supporting the approval of the McDonalds' decision.
PN428
MR BURKE: We did, Your Honour, and I think now we would be saying to McDonalds when we meet with them next that this is now the new test, this is what we say to employers as a whole and I must say the majority of employers that we deal with have taken this decision on board, that is the way they need to be looked at from now on, that is why we're stringent in what we have done in terms of our calculations and notwithstanding we haven't seen what was put here today earlier on - - -
PN429
THE DEPUTY PRESIDENT: None of those Full Benches dealt with an undertaking of the type that I have referred to in Glassons. I'm not asking you to comment on that at this point because you haven't seen what the undertaking is.
PN430
MR BURKE: For Glassons?
PN431
THE DEPUTY PRESIDENT: No, what is proposed.
PN432
MR BURKE: No, we haven't. But obviously Coles could have been approved if the undertakings hadn't been agreed to in that matter, too, but they weren't.
PN433
THE DEPUTY PRESIDENT: That places this case in a different position, doesn't it?
PN434
MR BURKE: Well, it depends upon the undertaking.
PN435
THE DEPUTY PRESIDENT: Precisely.
PN436
MR BURKE: And whether they are accepted by the employer.
PN437
THE DEPUTY PRESIDENT: Yes. The Commission is obliged to ask for your views, which I will be talking to you about at the conclusion of the proceedings.
PN438
MR BURKE: Yes, we were going to say something about undertakings anyway just to give an idea of what they should cover, but it would stem back to Hart v Coles as the test for any undertakings.
PN439
In relation to the award coverage we submit that the General Retail Industry Award 2010 is the applicable award. The establishment is covered by the proposed agreement - bakery shops. The retail establishment is covered by the agreement - prepare and sell bakery products and I took Mr Matassoni through his menu today and I think his evidence is that the majority of the products that are made on site, certainly bakery products, and then they are sold on site.
PN440
The General Retail Industry Award covers bakery shops. It is quite clear in the award, notwithstanding that there may be similar provisions in the Restaurant Award. The bakery shops are defined under the award as where the predominant activity in baking products for sale on the premises. There is no mention that the products cannot be consumed on the premises but I did take Mr Matassoni to this question and he did agree with me, prior to being re-examined, that he said that the predominant activity of the sites was the production of bakery products for sale on the premises. So, we would say that Mr Matassoni's evidence confirms our view that the retail award would apply.
PN441
Further, Mr Matassoni's evidence at point 12 of his witness statement states that at least 50 per cent of the products prepared are bakery products, 23 per cent are pies, 20 per cent are cakes and 7 per cent are bread, non GST products. So we say the predominant activity is the baking of products for sale to customers and in fact if we remember the photos, the one customer that is in the photo as a bakery product, probably a Danish or a roll or something like that ad that the products that are made are being sold by retail to customers who come into the bakery.
PN442
THE DEPUTY PRESIDENT: If that was so, why would the employer operate a 60 to a 200 seat caf type style arrangement?
PN443
MR BURKE: They may wish to have seats for people to sit down on, but if the predominant activity is the baking of products for sale on the premises we say that is why the award applies.
PN444
THE DEPUTY PRESIDENT: The predominant activity in a restaurant is to prepare meals from raw materials, isn't that the production of product?
PN445
MR BURKE: Yes, and they would be probably covered by the Restaurant Industry Award.
PN446
THE DEPUTY PRESIDENT: What is the difference?
PN447
MR BURKE: The difference is that the retail award calls out a bakery shop that produces bakery items for sale on the premises.
PN448
THE DEPUTY PRESIDENT: Mr Duc made a very good comparison of places such as we're all familiar with, the Brumby's, the Bakers Delight, even the Pie Face shops where there is no seating or if there is there's just a chair and a table outside. But they usually are in food halls or on street frontages that could in no way be described as a caf or, indeed, a restaurant.
PN449
MR BURKE: I did ask Mr Matassoni about the fact that what other bakery shops that he knew of sell the same products as him to take away, be they pies or pastries or whatnot, he agreed with that. So, those sorts of places are the same as we say here with Beechworth; the fact that seating may be available for someone - for the one customer who was in the photo is incidental.
PN450
THE DEPUTY PRESIDENT: I have had the pleasure of actually going into the Beechworth operation some years ago and you couldn't goddam move in the joint; you couldn't get a table, it was jam packed, that's why I was surprised to see a photo with one person in it, although it was 7 o'clock in the morning.
PN451
MR BURKE: I'm sure the bakery products are just as good as they were at the time you went, Deputy President, but obviously you now know the best time to go is about quarter past seven on a day. I didn't ask Mr Matassoni if they sell newspapers so you'd probably have to get that first before you go.
PN452
But that is what we say in relation to that, except I should just say that there is sometimes a clash between the retail award and the Restaurant Industry Award in relation to similar bakery establishments if, as in the case of Beechworth Bakery, the predominant activity is the baking of products for sale on the premises then the retail award applies.
PN453
As we have also said, in the event that these establishments are not covered by the retail award we say that the agreement still doesn't pass the BOOT in relation to those other awards and that, as has been highlighted by Mr Matassoni, I think to you, Deputy President, that the only benefit in the agreement is the increase in rates of pay. There are losses but that is the only benefit. And as we have shown and Mr Matassoni's evidence is showing that therefore employees who work at certain times are paid less than the - whichever award in this case.
PN454
THE DEPUTY PRESIDENT: Is your organisation covered by the 2008 agreement?
PN455
MR BURKE: No, it is a Work Choices agreement, Deputy President.
PN456
As the over award rates do not compensate employees for the reduction, the agreement cannot pass the BOOT as per Hart v Coles Supermarkets. We have highlighted a number of reductions in the conditions; we have highlighted those in our comparisons in Attachments A and B, they being for example reduced penalty rates on weekends, loss of late night penalties, reduced public holiday rates, no annual leave loading, no allowances where they apply, there's no roster change clause as such in the GRIA: a person gets a seven-day notice of a roster or 14 days if they object and in the restaurant award I think it is seven days as well, so there is no relevant provision in the agreement and also that overtime rates are reduced.
PN457
We say the rosters of individuals show the financial disadvantage they suffer under the proposed agreement when compared to the relevant award and, as we said, the simplest ones to show are people working on Sundays or early mornings if they're production workers or on public holidays. Our view is, looking at prospective employees or even current ones, because so many people are part time or casual they may only do one shift and that may be a Sunday or, as I have said, the next week being in Victoria, Cup Day being on Tuesday, if Tuesday was your only shift next week you would be paid less than the award.
PN458
So, those are the individuals or as groups of employees they are disadvantaged. If you take into account, as we've shown the calculations, the loss of annual leave loading and other things, people are further worse off. Even Mr Matassoni has done his own calculations today in his witness statement and Annexure G shows that a number of employees are worse off. In relation to the first group of bakery production employees his calculations show that 10 employees over the 16-week period would each be $177.80 better off. The benefit only applies to all employees if they have a rotating roster that includes a Saturday every fortnight, a roster with a Sunday every week would be worse off and I had asked Mr Matassoni about that and he did say there were people who may work every Sunday, it may be their choice, but if they don't rotate they would be paid less than the award and there is nothing in the award at the moment to protect that - or overcome that.
PN459
The $177.80 is an average benefit of $17.78 per week for each employee. Calculations do not consider the loss of annual leave loading or the reduced public holiday rate. When these are factored in we say that each employee - not looking at individuals - but each is financially worse off under the agreement in comparison with the relevant award. I should point out that the restaurant award and the retail award have the same penalty for bakers working before 6 am, it is both 12.5, so it is the same disadvantage in both.
PN460
The second group of production employees that were highlighted were $845.12 better off over the 16-week period. This, in my calculation, is $52.82 and whilst this would cover the loss of annual leave loading it wouldn't cover the reduction of public holiday rates, which I asked Mr Matassoni about. If an employee works one public holiday of at least 7.5 hours in a 16-week period they will be financially worse off under the agreement in comparison to the relevant award and we would say - - -
PN461
THE DEPUTY PRESIDENT: Are you taking into account they get 200 per cent?
PN462
MR BURKE: Yes.
PN463
THE DEPUTY PRESIDENT: So, it is the 50 per cent and they are is still - - -
PN464
MR BURKE: Yes, and we have some figures in our outline of submissions. And over the 16-week period there would be an average of three to four public holidays in both New South Wales and Victoria.
PN465
The third group of bakery production workers are shown to be $239.92 worse off over a four-month roster and this is before the loss of annual leave loading and reduced public holiday rate, so obviously that class of workers would need to be protected or that roster be not permitted under the agreement.
PN466
We have highlighted the public holiday rates for bakery production employees and both awards have the same rate for a trade person and we say that the public holiday rate would be $51.53 in both awards, the agreement provides for $44, so each hour would be a loss of $7.53 and if they did a 7.5 hour shift of $7.53 they would be $56.48 worse off, taking you back to the fact that on a weekly basis they would be $52.82 better off per week, so in one week they would be worse off and they would therefore need to be - that is why I asked in relation to whether or not work on a public holiday was voluntary and whilst it is perhaps - someone can ask for the day off, they may do their fair share and so we would say the Commission would have to take into account that when it considers whether this group of employees will be worse off.
PN467
We have said individually and as a group bakery production employees are financially worse off under the proposed agreement in relation to the relevant award. When we looked at the front of house people, based upon the rosters that had been provided with Mr Matassoni's witness statement, we looked in particular at Claudia because she is the only person on that roster that works only on a Sunday and it has been certainly agreed by Mr Matassoni that Claudia will be worse off each week that she works because she can only work on a Sunday.
PN468
We provided new calculations last night based upon the revised F17. It still shows that there is a loss and, without going through it, perhaps the Commission would not, I think as it has already, that someone working only on a Sunday and also a public holiday will be financially worse off. We have highlighted a number of other people who did work on individual Sundays only. Mr Matassoni agreed that Jamie was one on 14 August and also 9 October, that Jay and Campbell also worked only on 21 August in that week's roster. So, we are not talking about just one individual, there's a number of people that appear on the roster only working on one particular day and in this case a Sunday.
PN469
We did refer to their losses earlier on in Attachments A and B when we provided those but, without going through it, I think Mr Matassoni admitted that there was an issue with someone working on a Sunday. We did the same calculations then for another person by the name of Lorraine and I updated those on the basis of the F17, so that the Commission should have that. And that Lorraine works 25 hours part time including a Sunday and that if our calculations are correct, based upon the roster, we say that there is certainly a loss - a larger loss under the GRIA of about $62.45 per week and that is without considering other penalties that might not be there or the fact that there is no annual leave loading and, remembering that Lorraine is part time. But under the restaurant award our view is that there is a benefit of only 70 centrs per week when you do the roster. This is before the loss of annual leave loading or reduced public holiday rates including Easter Sunday again, being a public holiday.
PN470
The loss of annual leave loading for Lorraine would be a total of $330.93 or $6.30 per week under the restaurant award. It would be higher under the retail award as the retail award considers weekend penalties for annual leave leaving. So, we say the 50 cent benefit each week is negated by the loss of annual leave loading under whichever award you look at.
PN471
We then looked at the public holiday rates and we say that on any public holiday - on the Easter Sunday that Lorraine would work - this would be the same also for Claudia, as we mentioned in our revised calculations, we say there's a loss of somewhere between $8.08 and $9.40 per hour depending on which award. For Lorraine's five-hour shift on Easter Sunday this is a minimum of $40.40 for that day based on the restaurant award only, it would be higher under the retail award and we say this equates to just over 57-hours worth of the 70 cent weekly benefit that Lorraine gets every week and after working the one public holiday, falling on a Sunday, Lorraine is financially worse off.
PN472
As Lorraine works other days, as Mr Matassoni has said in his evidence, people work on other days, the public holiday loss is increased by the number of public holidays that Lorraine works and everyone else works. In the roster provided by the applicant, Lorraine works Monday and Tuesday, so she would be working next Cup Day which means at least four more public holidays in her roster throughout the year - Labor Day in Victoria, Easter Monday, Queen's Birthday and Melbourne Cup Day.
PN473
We have also talked about the team supervisors and we think it is - if someone is now not a supervisor, in effect, then it will be confusing to have the term "supervisor". If an undertaking is given and agreed to or put into the agreement and applies to team supervisors who may wish to look at their rate of pay they might - and there's a dispute about it and it was to, say, come back to the Commission or to the ombudsman, we would say that someone would look at the common sense definition here of "supervisor" and it clearly stands out in the restaurant award as a Level 5. We obviously say though if the retail award applies then it would be Level 6.
PN474
We go to the examples - we use Claudia as an example if she was to work as a team supervisor on a Sunday and she would also be further worse off on that - even on a Level 3 rate she would be worse off. So, as we have said, a number of permanent employees who work a roster with one Sunday are financially worse off - - -
PN475
THE DEPUTY PRESIDENT: Why is the Saturday rate for team supervisors in GRIA lower than the Saturday rate in the restaurant award?
PN476
MR BURKE: I don't think it would be, unless you're a Level 3 - - -
PN477
THE DEPUTY PRESIDENT: I'm reading from your submission.
PN478
MR BURKE: I think if they're a Level 3 casual they would be on a higher rate. Level 3 casuals are paid 75 per cent - sorry, is that on a Sunday?
PN479
THE DEPUTY PRESIDENT: The Sunday rate is higher but the Saturday rate is lower.
PN480
MR BURKE: I would have to check.
PN481
THE DEPUTY PRESIDENT: Paragraph 25 of your submissions.
PN482
MR BURKE: I haven't got to that part yet.
PN483
THE DEPUTY PRESIDENT: You were talking about team supervisors.
PN484
MR BURKE: Yes, I was, yes. But, sorry, I was talking about the calculations I had done yesterday, so I hadn't come back to where I was. I'm sure there's a reason. I'd have to go back and do my calculations. Hopefully, I didn't do these too late at night. But regardless of that, we say that the person should be at the 5 and if the rate is - different between the awards it is, but it's still a higher rate than is in the agreement. So, we would say it would be - we say that the evidence of Mr Matassoni shows that he has 18 senior employees working as supervisors; we would say that the employees who work in the front of house would look up to them as their direct supervisors, that they wouldn't be just assisting them and they should therefore be classified as the Level 5 rate - or the Level 6 rate in the retail award. As we haven't seen any rosters, well we did some calculations of our own, as we've said, and we now know there's at least 18 of them, an average of three per site.
PN485
Obviously, there will need to be some adjustment for drivers in relation to what the applicant concedes today and we would have to look at those rates and the Commission would as well to see if they are now passing the BOOT because, more importantly, for drivers, as we have highlighted in 27 of our outline, the weekend rates are far higher than the agreement rates and they're ordinary hours, these are not done as overtime. So, there's obviously a very big discrepancy there, there's only three employees, so it's quite easy to look at that disadvantage but as a class of employees, the drivers are disadvantaged under the agreement compared to the award.
PN486
Obviously, the increased weekly rates in the proposed agreement would not compensate for the reduced weekend rates from the award. As well, the loss of annual leave loading, reduced public holiday rates and reduced overtime rates make drivers financially worse off under the proposed agreement compared to the award.
PN487
I did wish to provide two decisions to the Commission, the Coles decision and the Integrated Services decision.
PN488
THE DEPUTY PRESIDENT: Thank you.
PN489
MR BURKE: Firstly, with Coles the Full Bench decided to look at the rosters that were provided to the Commission in that case. There was about eight or nine. And that was considered a reasonable test of about 74,000 employees who worked for Coles at the time which is - when you look at the number of rosters we considered it's a far higher proportion than if you consider the number that were considered at Coles and that obviously in this decision the Bench goes at point 6 to talk about the test and it has highlighted the BOOT:
PN490
The determination of this appeal requires us to consider on all of the evidence before the Commission whether the agreement passes the BOOT - it goes to section 193.
PN491
And then highlights at 7 that the parties did a monetary analysis of the agreement to determine if each employee was financially better off overall and looked at those particular rosters and said:
PN492
The evidence deals with the comparison payments under the instruments in isolation as well as the impact of these comparisons on actual employee rosters over the period of the roster. Much of this evidence is non-contentious ...
PN493
as we say here.
PN494
In essence, the agreement provides for a higher hourly rate than the relevant award rate that applies lower penalty payments for evenings, weekend and public holidays ...
PN495
and then there are some examples.
PN496
It is a similar thing here. There are higher base rates and lower penalties, so the Commission in the Full Bench did that test and we say that that is how it should be done here and we are not looking at a lot of rosters, as the Commission didn't either.
PN497
As I said, there is about eight employees from only two stores. At 11 it says:
PN498
As one would expect as a matter of simple logic, the more hours that are worked during times in the agreement rates are higher the better off employees will be. Conversely, the more hours worked when the aware rates are higher the worse off the employee will be compared to the award. In other words, if an employee works predominantly at night or on weekends the higher-based rate under the agreement will be counterbalanced by lower penalties payable under the agreement at these times.
PN499
And they then went to look at the losses of employees and one of them was up to $3,500 and we think if you did the calculations as well here, for example, Claudia, we think her losses - nearly $21 a week over a year, that is over $1,000 a year that that employee is losing. In the comparisons that the Commission looked at, the lowest loss was $142, the next lowest is $782. Both of those are less than the loss that Claudia will lose, remembering that Claudia is a part-timer so she's a permanent employee.
PN500
So, the Commission found that someone who was losing $142 or $782 when compared to the award would be worse off and that is why the agreement wasn't ultimately approved, it did not pass the BOOT.
PN501
THE DEPUTY PRESIDENT: How long are you going to be, Mr Burke?
PN502
MR BURKE: A little while longer, Deputy President. I was going to go through this decision and then the other decision and talk about undertakings.
PN503
THE DEPUTY PRESIDENT: When you say "a little while", how long is "a little while"?
PN504
MR BURKE: Hopefully, no more than 20 minutes or so, Deputy President.
PN505
MR DUC: I just have four points to make, it would be two minutes.
PN506
THE DEPUTY PRESIDENT: All right, proceed then.
PN507
MR BURKE: So, looking at point number 14 the Commission looked at and said that:
PN508
However, the application of the BOOT required satisfaction as at the test time that each award covered employee and prospective employee would be better off overall under the agreement. Much of the evidence before the Commission focused appropriately in our view on those employees who are likely to be among those most adversely affected.
PN509
And we have done the same thing here. In the next couple of paragraphs it then talked about other benefits that were considered to say that the agreement is better off overall, one of them being at 16, the third point payment whilst on annual leave, so the agreement has annual leave loading, this agreement does not have annual leave loading. It goes on to 17 to talk about other benefits, for example:
PN510
The rest and meal-break provisions of the agreement provide for a 15-minute break compared to 10 minutes under the award, this can be seen as an advantage.
PN511
I asked Mr Matassoni about whether there are breaks in this agreement, the only one is an unpaid meal-break and so whilst Coles had an extra 15-minute tea break when someone worked more than four hours, the Commission didn't take that into account in saying that the agreement was better off, unfortunately, but in relation to this agreement there are no breaks at all.
PN512
It also looked at in 18 whether future wage increases would be of benefit. It said that they wouldn't be looked at as not all employees at test time will remain in employment during the entire period of the agreement. It went further in 19 to look at pre-approved leave arrangements, blood donor leave, defence services leave, those things were in the Coles agreement, none of those are in this agreement as well.
PN513
It went on at 21 to talk about make-up pay and a number of other things. I asked Mr Matassoni if he was aware of make-up pay and whether it was in this agreement and it is not. Then when the Commission actually looked at all of these benefits, unfortunately found in 22 and 23 that they came to not a lot of value unfortunately in terms of the agreement being of benefit and so it fell back to looking at the rates of pay and whether they compensated people for the times that they work and that is what we say needs to be done in this case.
PN514
It says at 25 that:
PN515
The level of benefit is not large. We consider that the capacity talked about considered the capacity to use personal leave for domestic violence leave to be of benefit in the agreement.
PN516
But most other things it looked at it didn't find were of benefit to outweigh the financial disadvantage. It goes on further to consider things as well. But we make the point again that the things we talked about there in Coles weren't considered by the Full Bench as benefits and none of those are provided here, it is merely the increase in the base rate of pay.
PN517
Again, at 28 it said:
PN518
When looking at some other things, while it is appropriate to take into account these benefits, in our view, the value is not easily quantifiable and much lower than Ms Rowland has estimated.
PN519
And then 29:
PN520
But overall the net benefit of matters not otherwise dealt with is small. We also note that provisions of the agreement such as payment to part-timers for additional hours worked could amount to a detriment.
PN521
And in that the agreement has a rate of less than the overtime rate for additional hours and in this agreement there is no rate for additional hours unless they have passed, I think 152 or passed the maximum number of hours in a day. So, if someone actually works past their shift, say Claudia on a Sunday, passed her five hours or whatever and there be no extra payment; there be no overtime, it is still the increased base rate of pay. So the financial disadvantage of a small number of employees under the agreement at Coles is not outweighed by other benefits. We say that Beechworth has either less of the benefits that were considered by Coles and on that basis we have said that the agreement couldn't be proved.
PN522
The same approach has been taken by Gregory C following on from this decision and he says on 13 September - and we say it is also instructive in relation to this matter. The agreement was to cover a number of people working as security guards. It had multiple rosters and wage rates. It had no award penalty rates applying or annual leave loading, no allowances. He considered all of the matters and then ultimately he does not approve the agreement in the end.
PN523
He talks about at point 3 where:
PN524
The wage rate arrangements are a significant feature of the conditions contained in the agreement and involve what are often described as rolled up arrangements where a higher hourly rate is provided for, compared to the ordinary time rates applying in the awards. However, the agreement does not contain the additional penalty rates that apply under the relevant awards for work performed in the evening, at weekends and on public holidays.
PN525
MR BURKE: Again, the same case here. He goes on at point 8 to refer to the Full Bench decision in Duncan Hart v Coles Supermarkets and he says that:
PN526
The recent Full Bench decision in that matter also makes it clear that the assessment must be carried out in a way that ensures that each employee will be better off overall under the agreement and it is not sufficient for the Commission to simply be satisfied that the majority of employees will be better off.
PN527
The Full Bench made this clear in the following terms:
PN528
However, the application of the BOOT requires satisfaction as at the test time, that each award-covered employee and each prospective employee would be better off overall under the agreement.
PN529
For some reason one of the awards that the Commissioner looked at was the General Retail Industry Award, that came up. He looked at then a number of submissions and whatnot but he ultimately didn't make any decision on which award applied because he decided not to approve the agreement.
PN530
As I said, this agreement, I think the Commissioner looked at, had no annual leave loading; it had higher rates for when people worked during the day but reduced penalty rates. He looks at at point 30 at particular rosters provided to him and then does an assessment against the award and finds that in particular on a Sunday they would be worse off under the agreement than the award. He also looks at part-timers, the entitlements at 34:
PN531
The entitlements of part-time employees also need to be considered in terms of the better off overall test. This is again an important consideration given a significant proportion of the employees to be covered by the agreement are part-timers. The majority of employees under this agreement - the Beechworth agreement are also part-timers.
PN532
He then highlights the clause from the Security Services Industry Award 2010 in relation to part-time work and he goes on to say on 36 that:
PN533
The overtime provisions in clause 23 indicate overtime is payable at the rate of time and a half for the first two hours on a Monday to Friday and double time thereafter. Similar part-time employment arrangements also apply under the General Retail Industry Award.
PN534
We would also say that in fact the same part-time clause that is in the Security Services Industry Award is not unique - sorry, it's not unique to that award, it follows in the retail award and also follows in the Restaurant Industry Award as well. So, the Commissioner looked at that and decided that the part-timers were not going to be advantaged under the agreement as the award and we say the same thing here.
PN535
He goes on at 40 to talk about rosters and that the agreement had at 40 of the second sentence in this context:
PN536
The Commission referred in particular to sub-clause 4.3.4 of the agreement which indicates rosters can generally be changed by giving at least seven days' notice.
PN537
Then he goes on at 41:
PN538
The ability to change rosters on a daily basis without notice appears to create a situation whereby the hours for a part-time employee can be changed on a daily basis without notice creating a significant difference from the conditions in the Security Services Industry Award.
PN539
We say the same thing would happen here in this agreement. The reference to the roster clause is that employees will be given a roster, they could have the agreement - they could have their roster changed. There is no reference to amount of time or not, certainly not seven days which applies in the awards or 14 days in the restaurant award.
PN540
So that situation leads to a part-time worker, if they're working single days - a Tuesday one day, a Thursday the next, a Friday the week after and the situation may be that one week there may be a public holiday, for example next week being Tuesday the part-timer might normally be rostered on next Tuesday and they have their roster changed to another day and they would therefore miss out on the benefits of the public holiday rate in that case. If they were to be given seven days' notice under the award and they objected they would be given 14 and in fact under the retail award, if there is a change made to a roster to avoid an entitlement, which is public holiday rates, they are deemed to apply notwithstanding the roster change.
PN541
So we say that all those sorts of - the comments of the Commissioner in this matter should be taken into account in dealing with this matter. They are on a par with the employees that we're talking about here and the conditions and, as you can see at 47, the Commissioner says:
PN542
In conclusion, I am not satisfied that it is possible to conclude that each of the employees to be covered by the proposed agreement would be better off overall when compared to the terms and conditions of the award, whichever award it may be.
PN543
However, he didn't determine which award because he ultimately didn't approve the agreement, notwithstanding previous undertakings had been given.
PN544
We say those are the tests, those are the decisions that the Commission should take in considering the agreement today, that it is not passing the BOOT when we consider the test that the Full Bench has now put in place. The single improvement to the rate of pay during the week does not overcome the disadvantages that we have outlined elsewhere.
PN545
In terms of if any undertakings were to be looked at, we have considered in general what the Commission has put today but we would say that if an undertaking is to be looked at it would need to be sure that if there is a loss in terms of penalty rates, in terms of the public holiday rates that those are covered by the undertaking. The Glassons one in particular only talks about wages. I'm not sure if that is specific enough to talk about penalty rates and public holiday rates and so that would be something that we would raise to be covered.
PN546
Mr Matassoni himself has talked about in some cases where people are paid extra if there is some disadvantage to them already under the current agreement, so it is not something the company hasn't already turned its mind to in the past and is prepared to look at again. But we would say, for example, some are working only on a Sunday, they would have to have the award rate maintained, it shouldn't be necessarily an undertaking to be looked at over three months; it could be an undertaking that it is guaranteed each time. The company already knows some people will be working only on Sunday. The same should go to public holidays, that everybody - just far easier with an undertaking that work on the public holiday will be paid no less than the relevant award.
PN547
If these sorts of undertakings aren't given then, as with the original Coles' decision, some of the undertakings that were looked at there were whether there would be restrictions on, say, weekend work or late night work. Now that may be something that the applicant would look at, but something that certainly needs to be given to protect people. We also say the same should apply to the annual leave loading, that that needs to be covered by any undertaking. Looking at the Glassons' undertaking, I'm not sure that wages covers annual leave loading, it would need to be more specific than that. If it is done over three months then each permanent is accruing annual leave. If they have taken annual leave and under the award would have been paid more if leave loading applied then that should be covered by the undertaking as well.
PN548
The same would go baker reproduction employees that, as Mr Matassoni has said, if they only work Sunday to Wednesday they will be disadvantaged as against the award and so that would have to be addressed. It can be addressed by the alternating rosters being the norm but it may be more difficult because I think there are some people already, from Mr Matassoni's evidence, who choose not to work every Sunday - sorry - every Saturday and they have that arrangement. We think that the undertaking should look at overtime where it is paid less after two hours.'
PN549
THE DEPUTY PRESIDENT: You are taking a line by line approach. It is not the appropriate test to look at one provision and say "You've got to give an undertaking about that because it's in the award". What you have to do is give an undertaking which ensures that employees are better off overall and that is not consistent with an approach that is line by line.
PN550
MR BURKE: I suppose we are looking at what the Full Bench said.
PN551
THE DEPUTY PRESIDENT: That is not what the Full Bench said, because it didn't deal with that sort of undertaking.
PN552
MR BURKE: Well, it didn't have to in this case.
PN553
THE DEPUTY PRESIDENT: No, because Coles wouldn't give them.
PN554
MR BURKE: No, because in relation to overtime there is no difference, from memory, compared to the award. The difference here is the overtime provisions after two hours are less than the award, that is the reason to look at it.
PN555
THE DEPUTY PRESIDENT: But you weren't talking about that. You were talking about the public holiday loading, the annual leave loading and that has to be an undertaking as well. But if it has already taken into account in the rate then that is what you are looking at and, indeed, that is what the Commission's own instructions are to employers to do - when they are doing this exercise to do.
PN556
MR BURKE: In our own calculations in this matter we have shown, Deputy President, and we show that people are worse off in some cases.
PN557
THE DEPUTY PRESIDENT: That's right.
PN558
MR BURKE: That's why they need to be protected with an undertaking.
PN559
THE DEPUTY PRESIDENT: That's right, that is what I'm trying to get to, but it is not by taking a line by line approach to say you haven't got annual leave loading so you've got to put an undertaking in about that; you haven't got something else in the award, so you've got to give an undertaking about that; you haven't got something else, you've got to give an undertaking. That is not how it works.
PN560
MR BURKE: The alternative is that the agreement perhaps doesn't pass the BOOT and is non-approved, that is one alternative.
PN561
THE DEPUTY PRESIDENT: That assumes that the undertaking doesn't meet the concerns of the Commission in respect to passing the better off overall test.
PN562
MR BURKE: Yes, that is assuming that, Deputy President.
PN563
Finally, we would say in terms of rosters that the undertaking should be given that rosters change with seven days' notice or 14 days' notice if there is a dispute, because we say that someone will be worse off, compared to the award, on that basis.
PN564
THE DEPUTY PRESIDENT: The consultation provision provides for advice about rosters, doesn't it?
PN565
MR BURKE: But not a timeframe, it is just provided and if the employee wishes to object or not it doesn't say that, it merely says - - -
PN566
THE DEPUTY PRESIDENT: I know what it says.
PN567
MR BURKE: And then there is no reference in the agreement to, for example, seven days' notice at least; it could be 24 hours' notice, the point that Gregory C was going to as well and that is why we have highlighted it.
PN568
In conclusion then we say that the GRIA is a relevant award and not the restaurant award; we say the Commission should make that finding and what flows from it is that people aren't disadvantaged to a far greater extent than we have shown in relation to the restaurant award. We say that the Coles decision and the Integrated Protective Services' decision are the tests to follow in considering if an agreement passes the BOOT. In those two decisions the agreement had more beneficial entitlements than Beechworth and were not approved. They had annual leave loading, public holiday rates in Coles and rosters in the Integrated decision.
PN569
We also say the evidence of Mr Matassoni has shown the financial disadvantage under the agreement when compared to the relevant award for a number of employees, not just individuals, be they considered as groups or as classes and this is further evidenced that the agreement cannot be approved.
PN570
We say we have established that a large number of current and prospective employees under the proposed agreement will be financially worse off under the proposed agreement in comparison with the relevant award, therefore the proposed Beechworth Bakery Employee Commission enterprise agreement 2016 does not pass the BOOT and should not be approved. In the alternative, any undertaking provided to allow the agreement to be approved must match the relevant award provision that has been moved or reduced. If the Commission pleases.
PN571
MR DUC: Your Honour, very briefly. The Commission has picked up several issues that I wanted to make mention of, so perhaps I will just go straight to the undertaking issue.
PN572
Your Honour, we are prepared to look at the undertaking in Glassons, that structure, in relation to the supervisors' issue, about how much they get paid and I note that the Glassons' suggested clause refers to the grievance procedure, so if there is an issue between employees about what level they are then that will be dealt with through the grievance procedure.
PN573
In relation to Sundays, we will look at giving an undertaking to pay the employees in accordance with Sunday. In relation to where employees only work public holidays, we will also look at giving an undertaking to bring them up to the award there. The second last issue is the late night employees who have been identified as potentially having disadvantage. I will also look at that particular issue and, finally, drivers.
PN574
So, in summary, there are five issues that an undertaking will deal with and we would seek to provide an undertaking to the Commission within seven days unless the Commission's minded to come back after 2 o'clock, but I think I might need some more time with Mr Matassoni to do some calculations.
PN575
Finally, I note that it is not a negotiation between the Commission and the applicants or the union; we will provide the undertaking on which the Commission can make a final decision.
PN576
THE DEPUTY PRESIDENT: Thank you. I had in mind a period of seven days and, of course, pursuant to section 190(4), I am obliged to seek the views of the bargaining representative, so that will be provided to you. How soon after the provision of that would you require opportunity to respond?
PN577
MR BURKE: I think I should mention we are not the only bargaining representative in this matter; there are employee bargaining reps, too.
PN578
THE DEPUTY PRESIDENT: Yes, invariably they don't say very much.
PN579
MR BURKE: Sometimes they do. If you look at the Gregory decision there was an employee involved. Would a further seven days be able to - if the Commission pleases?
PN580
THE DEPUTY PRESIDENT: All right. I will adjourn on that basis. I will expect an undertaking in the various discussions that we have had and then allow the period of time for the bargaining representatives to give their views and consequent upon that I will consider the matters more fulsomely and issue a decision in due course. I now adjourn.
ADJOURNED INDEFINITELY [1.21 PM]
LIST OF WITNESSES, EXHIBITS AND MFIs
MARTIN MATASSONI, SWORN........................................................................ PN38
EXAMINATION-IN-CHIEF BY MR DUC......................................................... PN38
EXHIBIT #1 WITNESS STATEMENT OF MARTIN MATASSONI............. PN44
CROSS-EXAMINATION BY MR BURKE........................................................ PN47
THE WITNESS WITHDREW............................................................................ PN306
MARTIN MATASSONI, RECALLED.............................................................. PN314
RE-EXAMINATION BY MR DUC.................................................................... PN314
FURTHER CROSS-EXAMINATION BY MR BURKE................................. PN345
THE WITNESS WITHDREW............................................................................ PN366
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