Diphil Investments Pty Ltd/Askew/McDonald t/a Subway Westfield Chermside v The employees of Diphil Investments Pty Ltd/Askew/McDonald t/a Subway Westfield Chermside [2002] QIRC 30 (2002) 169 QGIG 267

28 March, 2002 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 267 QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Industrial Relations Act 1999 – s. 153 – application to certify agreement Diphil Investments Pty Ltd/Rodd Askew/Glenn McDonald t/a Subway Westfield Chermside AND The employees of Diphil Investments Pty Ltd/Rodd Askew/Glenn McDonald t/a Subway Westfield Chermside (No. CA22 of 2002) SUBWAY WESTFIELD CHERMSIDE – CERTIFIED AGREEMENT 2001 COMMISSIONER ASBURY 19 March 2002 Industrial Relations Act 1999 s. 153 – Application to certify agreement – Insufficient detail contained in affidavit to enable assessment of whether requirements for certification have been met – Parties given opportunity to provide further information – As a result of further information provided concerns remain about whether steps required by s. 144 have been taken – Proposed exemption rate provision does not meet requirements of the no- disadvantage test – Application re-listed to give parties a further opportunity to take action necessary to enable the agreement to be certified. DECISION This is an application by the Retailers’ Association of Queensland Limited, Union of Employers (RAQ), on behalf of Diphil Investments Pty Ltd/Rodd Askew/Glenn McDonald trading as Subway Westfield Chermside, for the certification of an agreement. The proposed agreement is made between the employer and employees, pursuant to s. 142(b)(ii) of the Industrial Relations Act 1999 (the Act). The application is accompanied by an affidavit executed by Ms Melanie Mack, stating that Ms Mack is a duly elected employee representative, authorised under the Act and rules to make the affidavit. The affidavit does not detail how Ms Mack was so authorised, or by whom. Ms Mack’s affidavit goes on to state that a number of steps were taken to comply with s. 143 and s. 144 of the Act. These steps included posting of notices on store notice boards and a handout showing a comparison between the proposed agreement, and the relevant award. The affidavit states that the relevant award (for the purposes of the application of the “no-disadvantage test” in Chapter 6, Part 1, Division 3 of the Act) is the Retail Take-Away Food Award – South Eastern Division, and that Ms Mack had considered the terms of that Award and the proposed agreement, and reached a view that the Agreement passes the “no-disadvantage test”. Further, the affidavit detailed the results of a communication and balloting process which was said to have been conducted, resulting in employees signing a document to indicate that the Agreement had been explained to them and that no further discussion was required. The notices, handouts and other documentation referred to in Ms Mack’s affidavit were not appended to it. Further, there was no information either in the affidavit of Ms Mack or appended to it, as to the understanding Ms Mack had of the terms of the Retail Take-Away Food Award – South Eastern Division to enable her to have made a comparison between that Award and the terms of the proposed agreement. The difficulty was exacerbated by the fact that Ms Mack was not available at the hearing into the certification of the Agreement on 4 February 2002, to answer questions about the Agreement and the process by which it was made. While an application to have Ms Mack be available by telephone was made, this was not done in sufficient time to enable arrangements to be put into place and was not in accordance with the Practice Note issued by the Commission in relation to Taking Evidence by Telephone (No 1 of 2000) (2000) 165 QGIG 520-521. The proposed agreement changes a number of award provisions including the penalty rate for overtime worked on Sundays. It was contended from the bar table, that the incidence of overtime worked on Sundays is rare. No information was provided about rosters to enable the Commission to form a view in relation to the question of whether the proposed agreement passes the no-disadvantage test. I also expressed concern to the parties about an exemption provision contained in clause 4 of the proposed agreement. Before refusing to certify an agreement, the Commission must, pursuant to s. 158(1)(b) of the Act, give the parties the opportunity to take such action as may be necessary to enable the Commission to certify the Agreement. On the basis that the material before me at the hearing on 4 February 2002 contained insufficient detail to enable me to form a view about whether the proposed agreement met the requirements of the Act for certification, an adjournment was granted to the parties to enable further material to be provided to the Commission. That material was filed 12 and 27 February 2002. I have now given consideration to the further material filed by the RAQ. This comprised a further affidavit of Ms Mack and a notice of appointment of Ms Mack as agent, signed by the employees proposed to be covered by the Agreement. Ms Mack’s original affidavit refers to a “handout showing a comparison between the award and the proposed agreement” which she deposed was provided to employees as part of the explanation of the terms of the Agreement. A comparison document was tendered to me at the hearing on 4 February which does contain such a comparison, going to matters such as:– • notice on termination; • notification of changes to rosters and rostered days off; • wages; • penalty rates for weekends late work; • laundry allowance; • maximum hours; • overtime; • overtime meal breaks; and • family leave. However, the second affidavit of Ms Mack filed on 12 February, contains another comparison document, which shows only the wage rates in the Award and the proposed agreement. Ms Mack deposes that this is the comparison document which was provided to employees. The lack of detail in the comparison document which was actually provided to employees (in contrast with the document tendered and relied upon during the hearing) causes me to question the basis upon which Ms Mack could have compared the proposed agreement with the Award, and the adequacy of the explanation provided to employees about the terms of the proposed agreement, as required by ss. 144 and 156. The deficiency in the comparison document is cured to some extent, by the second affidavit of Ms Mack, which states that on 4 November 2001, a staff meeting was held to explain the terms of the proposed agreement. Section 156 of the Act provides that I must be satisfied that the things required by s. 143, 144 and 145 were done. In particular I must be satisfied that the terms of the agreement were explained to employees in an appropriate way. -- 1 of 2 -- 268 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 28 March, 2002 I am satisfied that the requirements of s. 143 have been met, and that s. 144 is not relevant. In order to be satisfied that the requirements of ss. 143 and 144 have been met, I require further information about what explanation was provided to employees, and what Ms Mack based her opinion about the agreement passing the no-disadvantage test on. My concerns in relation to whether the proposed agreement passes the no-disadvantage test centre on clause 1.4, which provides as follows:– “1.4 Excluded Employees 1. This agreement does not apply to an employee in receipt of a weekly wage which is greater than 20% above the rate prescribed in the wages (sic) of a Subway Probationary Employee with the exception of the sick leave; annual holiday; public holiday; long service leave and superannuation clauses. 2. Excluded employees must only be rostered for 152 hours in a 28 day cycle but can work beyond their roster to meet the operational requirements of the store.”. The Retail Take-Away Food Award – South Eastern Division, does not contain a provision allowing employees to be exempted from Award entitlements. Further, the proposed certified agreement stands alone, and does not operate in conjunction with the Award. There is no evidence or information before me as to the current or future impact of the proposed exemption. The potential effect of clause 1.4 is to exclude any current or future employee from the provisions of both the Retail Take-Away Food Award – South Eastern Division and the proposed agreement. The proposed exemption clause is not limited in its potential operation, and could also be used to exclude casual employees from the benefits of the Agreement, particularly with respect to hours of work and overtime provisions. I also note that clause 1.2 of the proposed agreement excludes managers, so it cannot be said that the proposed exemption in clause 1.4 is required if the intention is to exclude managerial employees from the Agreement (and arguably the Award). The no-disadvantage test as set out in s. 160 of the Act is as follows:– “When an agreement passes the no-disadvantage test 160(1) An agreement passes the no-disadvantage test if it does not disadvantage employees in relation to their employment conditions. (2) An agreement disadvantages employees only if the commission considers it would result in a reduction in the employees’ entitlements or protections. . . . (6) In this section – ‘entitlements or protections’ means the entitlements or protections under – (a) a relevant award, designated award, industrial agreement or order under chapter 5, part 5; or (b) chapter 2, including as reviewed by a general ruling of the full bench.”. While the exemption provision proposed in the Agreement does leave in place some entitlements under the Agreement, it removes entitlements relating to hours of work and overtime under the Agreement. The proposed exemption provision also arguably entirely exempts those subject to it, from the provisions of the Award. I am not satisfied for the reasons set out above, that the proposed agreement, insofar as it provides the exemption in clause 1.4, meets the requirements of the no-disadvantage test. I also note that the proposed agreement as appended to the application for certification, sets the casual loading at 17%. This is in contrast with the document tendered at the hearing on 4 February purporting to show a comparison between the Agreement and the Retail Take-Away Food Award – South Eastern Division, which indicates that the casual loading under the proposed agreement is 18%. No amendment has been sought to the proposed agreement. The reduction in the casual loading from the Award provision of 22%, is said to be offset by the fact that the casual rate is calculated by reference to the rate for weekly employees, which contains a component for weekend penalties. It is clear from the comparison sheet tendered at the hearing that a casual rate based on 18% of the Agreement rate for weekly employees results in the requirements of the no-disadvantage test being met. However, the proposed agreement provides for a casual loading of 17%. I require clarification of the quantum of the proposed casual loading or a revised comparison sheet detailing the comparison between the casual rates in the proposed agreement and the Award. It is incumbent on parties who bring agreements to the Commission for certification to provide sufficient material to enable the Commission to be satisfied that the requirements of the Act have been met. Those requirements are not onerous and the type of supporting material which would enable the Commission to certify an agreement is apparent from the terms of ss. 143, 144 and 156 of the Act. It is also clear from Regulation 9 of the Industrial Relations Regulation 2000, that an agreement must be accompanied by an affidavit containing information, inter alia, about the steps taken to ensure compliance with certain sections of the Act, in particular the requirement for an explanation of the terms of the agreement to be provided to employees in an appropriate way. Where insufficient or inadequate material is provided, delays in the certification of agreements will unfortunately, be inevitable. I have detailed my concerns by way of a written decision, so that they are clear to the parties, and so that the parties have every opportunity to take the action necessary to enable the Agreement to be certified. I re-list the matter for further hearing on Monday, 25 March 2002 at 2.00 pm, for this purpose. I Order accordingly. I.C. ASBURY, Commissioner. Released: 19 March 2002 Appearances:– Mr M. Guymer and Ms S. McAuliffe for the Retailers’ Association of Queensland Limited, Union of Employers. -- 2 of 2 --