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TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984 G and A L Tambakis and Persons employed as Casual and Part-Time Employees THE GEORGIOS CAFÉ AND TAKEAWAY ENTERPRISE AGREEMENT 2001
Enterprise Agreement - duty of care - fair in all the circumstances - request for second adjournment - award provisions - application dismissed DISMISSAL OF ENTERPRISE AGREEMENT [1] This was an enterprise agreement (the agreement) lodged with the Acting Registrar in accordance with Section 61H of the Industrial Relations Act 1984 (the Act), for approval and registration. [2] The employer party to the agreement was G and A L Tambakis, trading as Georgios Café and Takeaway of 251 Mount Street, Upper Burnie, Tas 7320 (the employer). The employee parties were those in the classes of employment to which the agreement applied, that is, café and takeaway assistants (the employees). [3] The agreement was to commence on 7 November 2000 and remain in force for a period of three years. It was first lodged with the Commission on 27 April 2001. [4] The first hearing of the application took place at Burnie on 17 July 2001. At that first hearing Mr P Tullgren of the Australian Liquor, Hospitality and Miscellaneous Workers Union - Tasmanian Branch), representing one of the employees of the employer, opposed the approval of the agreement. Mr J Evans, Manager of the Enterprise Agreements Unit of the Office of Industrial Relations in the Department of Justice and Industrial Relations (the Department), appeared on behalf of the employer and made submissions in support of approval of the agreement. He outlined the procedures that had been followed in compliance with the provisions of the Act. [5] Mr G Tambakis, on behalf of the employer, also gave evidence in the form of a witness statement. [6] All the employees who had signed the agreement (except the one represented by Mr Tullgren who had not signed the agreement, and one other who had signed the agreement, but, owing to her absence interstate, had submitted a statutory declaration), either in person or through one of the employees present authorised as an agent, said at the hearing that the agreement had not been made under duress and they considered it to be a fair agreement. As well as the employee who opposed the agreement, there were four of the employees at the hearing who signed the agreement, and the employee who submitted the statutory declaration supported it in much the same way as those present. [7] In opposition Mr Tullgren submitted that the agreement failed to meet the statutory tests set out in Sections 61F, 61I and 61J of the Act, and he pointed out where he considered the agreement provided conditions of employment less than the prescribed minimum for annual leave, sick leave and parental leave. [8] Mr Tullgren referred to a letter which Mr Evans had sent to the employees in March 2001, which contained the following paragraph relating to a copy of the agreement which was sent to the Commission for checking, as was the custom in some cases at that time1:
[9] Mr Tullgren said:
[10] Further, referring to section 61I, Mr Tullgren claimed that the Government, through the Department, failed to provide the employees with adequate comparisons between the award and the agreement. This was in the context also of the previous Section 61 enterprise agreement between the parties which had expired in November 2000. [11] Mr Tullgren submitted:
[12] Other criticisms of the documentation and the process adopted by the Department were made by Mr Tullgren. [13] Quoting the High Court decision in the matter Shaddock & Associates Ltd v Parramatta City Council (No 1),5 Mr Tullgren submitted that the Department, through Mr Evans, had a duty of care when providing advice to employees. Mr Tullgren said:
He submitted that Mr Evans and the Department had failed in their duty of care to the employees. [14] It was submitted also that the tests provided in Section 61J had not been met. In particular, the employee Mr Tullgren represented had not been afforded the opportunity to negotiate. In relation to the Act, Section 61J(1)(f), the "fair in all the circumstances" test, Mr Tullgren submitted that the agreement failed the test and, in applying the prescription of the subsection, the Commission should adopt the plain and ordinary meaning of the words contained therein, not a narrow, specialised interpretation. He relied on an extract from the Minister's Second Reading Speech of the Industrial Relations Amendment Bill 19977 in support of his contentions. [15] Mr Tullgren was at pains to submit at length about the "fair in all the circumstances" test, especially in the context of the award provisions. He said:
He also canvassed a number of provisions in the agreement and their negative comparison against the relevant award provisions. [16] Relying on statistics and conclusions found in a recent study,9 Mr Tullgren sought to demonstrate that women have lost more by comparison because they predominate in the hospitality industry which has seen one of the highest percentages of low wage agreements. [17] When Mr Tullgren had completed his primary submissions in the first hearing, Mr Evans sought and was granted an adjournment so that he could prepare a reply to those submissions. [18] On 13 August 2001, the hearing resumed and Mr C Willingham, Director, Industrial Relations, Department of Justice and Industrial Relations, appeared with Mr Evans. Mr Willingham requested that the hearing of this application be further adjourned to enable the Department to correct certain matters brought to light by Mr Tullgren as deficiencies in the settlement of the agreement which was sought to be approved. Mr Willingham submitted this would require fresh documentation and explanations to the employees. All this was without prejudice to other matters and procedures raised by Mr Tullgren which, Mr Willingham contended, were wrong, misconceived and misconstrued. [19] Mr Willingham distinguished two areas in need of revisiting. One was the need to make it clear to the employees that even though some changes had been made to the agreement at the behest of the Commission, the agreement still remained open for further negotiation and settlement prior to the approval process after that. The other was the need to make sure the comparison documents made available to the employees were complete and factual. [20] In light of the fact that nine out of the ten employees had accepted the agreement, and his view that the process had not been flawed fundamentally, Mr Willingham was of the view that it would be unfair to withdraw the application for approval of the agreement. [21] Mr Tullgren was vehemently opposed to the granting of a second adjournment for the purposes described by Mr Willingham. He submitted that the Commission had a responsibility to approve or not approve the agreement based upon the statutory tests. [22] Mr Tullgren said that to delay this matter would disadvantage further the employee he represented who, he submitted, was entitled to the full benefit of the award's provisions since November 2000. He was highly critical of the administrative procedures involved in this application. [23] Mr Tullgren submitted that the granting of an adjournment at this stage would lead to a situation where:
[24] In response, Mr Willingham dismissed the High Court's decision in Shaddock & Associates (supra) as having no application in light of his Department's statutory obligations. He also said that under the Act the Commission had the power to grant an adjournment. [25] Mr Willingham pointed out that the delay and opposition in this matter was unfair to the nine other employees involved who had heard Mr Tullgren's submissions, were aware of the agreement's implications and had signed it. [26] Mr Willingham acknowledged the errors pointed out by Mr Tullgren, but, said they were minor and he did not accept them as significant and he said it was appropriate that an adjournment be granted to allow the Department to advise the employees accordingly. If necessary, Mr Willingham said, another ballot could be held or all ten employees could be present at the resumed hearing to indicate their wishes. [27] Mr Willingham wished to make it clear that he had become involved because the earlier intervention, after the agreement had been signed, had been to the advantage of the employees, there had been no disadvantage to the employees. He said:
Conclusions [28] The "serious matter" raised by Mr Tullgren has been acknowledged by the Commission and all sides of the industrial arena. Changed practices and procedures in relation to that allegation have been in place for quite some time. Nevertheless, I note that at the time this application was lodged, the matter had not been raised. I also note that this particular application appears to have been a catalyst when the allegation was first raised outside this hearing. [29] I accept it is quite appropriate and not unusual in matters such as this for adjournments to be allowed and amendments made to agreements by mutual agreement. The problem with this application, as I see it, is that one of the parties is at complete loggerheads over the substance of the agreement and the procedures surrounding its preparation. That one party's objections and submissions have been ably and extensively put by Mr Tullgren and they carry weight. On the other hand, the Commission is aware that, whatever the merits of the objections, nine out of ten of the employees support the approval of the agreement. Moreover, some heat has been generated in the course of proceedings so that the division between the parties is quite marked. [30] In these circumstances, and keeping in mind the maxim enunciated by Lord Hewart:
I refuse any further adjournment and dismiss the application so that, if the agreement is to be pursued, it will be de novo and free of any suspicion or doubt.
P A Imlach Appearances: Dates and places of hearing: 1 Following representations by Mr Tullgren in another forum this practise ceased. |