C2001/1667, Transcript of Proceedings [2001] AIRCTrans 2150 (31 August 2001)

AUSCRIPT PTY LTD
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TRANSCRIPT OF PROCEEDINGS


O/N 8827
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT WILLIAMS

C2001/1667

AUSTRALIAN WORKERS UNION

and

KIO-ORA PIGGERY PTY LIMITED
and OTHERS

Notification pursuant to section 99 of the Act
of a dispute re log of claims

MELBOURNE

10.04 AM, FRIDAY, 10 AUGUST 2001

Continued from 31.7.01

PN1022

THE SENIOR DEPUTY PRESIDENT: Yes, Mr Calver.

PN1023

MR CALVER: Thank you, your Honour. If it pleases the Commission, there are a number of matters that need to be addressed today and they are shortly outlined in a document entitled outline of submissions, that was filed and served on 3 August, 2001. There is an error on the face of that document. There was a paragraph 3, which was deleted and unfortunately the balance of the paragraphs were not renumbered, so they go one, two, four, five. I apologise for that typographical error.

PN1024

THE SENIOR DEPUTY PRESIDENT: I thought it might have been written in invisible ink. Go head, Mr Calver.

PN1025

MR CALVER: Further, rather than hand to the Commission and to my friend, Ms Angus, a raft of authorities, we bound them up and circulated them on 6 August and they were put in folders with a ring binder. We were admonished by a Full Bench for not doing that pre this occasion, using some other form of binding. The pages are not as is required by the Commission, sequentially numbered because of the issue of time. So I draw your attention to that and I will endeavour to take your Honour to each of those authorities and as I run through the outline.

PN1026

I also forwarded a facsimile, which I filed and served on 9 August, 2001 that attached a copy of the decision in PR904326, a decision of your Honour in the Borgecraft matter. The Borgecraft matter is one matter that raises whether or not two awards can apply in a particular industrial context and because there was some consonance with arguments that were put by Ms Angus during the course of her submissions following closure of witness evidence. I believed it worthwhile that we went to that case and distinguished it and it was only recently in this week's research on this matter that we found that. So the case was filed and served after the date of directions. Again, I apologise for that.

PN1027

THE SENIOR DEPUTY PRESIDENT: For your information, that decision is subject to appeal.

PN1028

MR CALVER: I was aware of that, your Honour. However, for the present it stands. I believe it can be distinguished and the manner in which it is distinguished goes to the very nub of the argument that we believe prevails in these proceedings. And I want to make it absolutely clear that there was no measure of impertinence in drawing your Honour's attention to that.

PN1029

THE SENIOR DEPUTY PRESIDENT: It was not taken in any way like that.

PN1030

MR CALVER: So I will firstly address some matters of fact and evidence that place the legal arguments in context before I go to the outline. I will then go to the outline and take the Commission to the legal arguments that we believe are applicable in this matter. So the AWU say this is merely a simple roping-in matter. They say you saw a piggery and the company supplies workers to a piggery ergo the Pig Breeding and Raising Award should be applied to those workers. That argument is beguiling in its simplicity.

PN1031

However, whilst we concede that some of the workers supplied by Sixth Gralloch in connection with, and those are the important words, a primary production function do work in a piggery, that is not the total task. That is not their entire contract of employment. Hence, our argument in response may also be labelled as quite straight forward. The workers work in a mixed farming enterprise that includes a piggery. They are currently covered by the Pastoral Industry Award and that should continue.

PN1032

That should continue because the PIA absorbs and assimilates all other more specific agricultural endeavours. The expression I am going to use is that the PIA gazumps the other agricultural rules. Ms Angus summarised the issues well at page 947 of transcript, paragraph number 947 of transcript. The Pastoral Industry Award at line one, two, three, four, five:

PN1033

The Pastoral Industry Award has sufficient scope to encompass the various components of their operations, including piggeries as defined as livestock as well as crops.

PN1034

And that, broadly speaking, there was only a need for - it is only appropriate there be one award or one safety net to apply across the entire business. And we say that does, indeed, encapsulate our argument. The rationale for that, however, needs some explication and some detailed analysis of the legal principles. And I am quite - I have been quite plain with Ms Angus and I will be with this Commission, that this is the first time that this Commission has been asked to consider the scope of the Pastoral Industry Award post Ceres Cotton, and post some of the other cases that have been in contention in the New South Wales Industrial Relations Commission.

PN1035

Our argument is that the workers who are engaged by Sixth Gralloch can be asked to do any farming task, and that is the clear evidence of Mr Smith. The clear evidence is that they are informed of this issue when they are engaged and paragraph 13 of NFF4, which is Mr Smith's witness statement, makes that absolutely plain, as did his answers to questions about that issue. They may be asked to work anywhere on the farm.

PN1036

They are currently covered by the PIA: they should continue to be covered by the PIA. It covers their work in the piggery, and it covers their other work. It is an award of the Commission, it satisfied the first award principles, and it reflects the current terms and conditions of work that apply to Sixth Gralloch. This meets the prima facie consideration when looking at a first award, that is, maintenance of current terms and conditions and rates.

PN1037

The way we say our argument in the broad should be preferred over Ms Angus' is that pig breeding and raising can be subsumed into the PIA scope and classifications, but the reverse is not correct. Hence only one award should apply, because in respect of all of the workers engaged the employer's obligations can be satisfied by following that one award. All of their obligations can be satisfied. Now, I will go to that contention in greater detail, but that is the train of argument that I will be following.

PN1038

Secondly, and obviously linked to contention is that the PIA covers all other work that workers engaged by Sixth Gralloch can perform, including at other farms, not necessarily at Kio-Ora, there is one exception and that is the work of the journalist engaged by Sixth Gralloch in recent times, evidence that a journalist was engaged to work on the history of the district was given by Mr Smith. It covers all of the work that the workers engaged by Sixth Gralloch can perform including at other farms. It covers all work once the work is determined to be within the scope of the PIA including, as I will go to, a bulldozer driver working on a farm. And that is in the Dalpalm case which I will come to later.

PN1039

Ms Angus herself said that one of the tests is that coverage should be extended to work most appropriately covered by a particular award. She says that at paragraph number 111 of transcript. We say that that work and the work that this Commission should focus on is that which is broadly set out in the PIA, that is, all farm work. So to the evidence, not surprisingly, we disagree with the opinion evidence of Ms Angus in this matter. At paragraph number 205 of transcript she expresses a view that two awards are appropriate.

PN1040

At the time Ms Angus offered that opinion we objected. We objected because she is the advocate in this case and because the AWU did not seek to qualify her as an expert on this essentially legal question. We submit that the Commission should therefore give no weight to her opinion. We say that the Pastoral Industry Award covers all of the work in connection with primary production that is undertaken at Kio-Ora or which may be undertaken should the workers be based elsewhere in the farming community.

PN1041

None of these workers has, as a term of their contract, that they shall be wholly or totally employed in the breeding and raising of pigs. An admitted key to the application of the award that the AWU seeks to apply. At paragraph number 259 of transcript Ms Angus admits to that as an issue. That is, the fact that more than one employee who isn't wholly or totally employed in or in connection with the breeding or raising of pigs is the test of the scope of the Pig Breeding and Raising Award. That is one of the legal arguments I will shortly go to.

PN1042

We say that argument is important. It also goes to one of the ways in which we intend to distinguish the proposition of law set out at page 9 of the Internet copy of PR904326 filed and served yesterday. The major argument that we wish to advance is that in agriculture the Pastoral Industry Award gazumps all other agricultural awards. That is clear from the limited scope provision of the Pig Breeding and Raising Award and made manifest in the scope provision of the Horticultural Industry AWU Award.

PN1043

Before I elaborate upon that legal argument I also wish to make the issue quite clear from the evidence of Ms Angus. During cross-examination she admitted at paragraph number 265 that in the circumstances where there were pigs in a mixed enterprise the Pastoral Industry Award would be an appropriate award. We rely upon that statement as an indication that the PIA has the scope and the capacity to apply in this instance and we will be urging your Honour to exercise your considerable discretion in that way.

PN1044

We say that the only AWU evidence before you other than the inspection is Ms Angus' evidence and that, we contend, should be given little weight save for her admission that the PIA applies to a mixed enterprise. We do disagree with Ms Angus when she goes on with the second part of her interpretation at paragraph number 265 of transcript. She says:

PN1045

Where there is one employee in full time capacity -

PN1046

the last four lines of paragraph number 265:

PN1047

Where there is one employee in full time capacity whether employees who are wholly employed in or in connection with the raising of pigs then this award would be the appropriate award.

PN1048

We disagree because if the PIA applies the work is subsumed into its scope. I will return again to that issue in legal argument. Moving on with the evidence we reinforce Ms Angus' statement in cross-examination by referring the Commission to Mr Streets' evidence at paragraph number 328 that up to 70 per cent of the pork industry is covered by the PIA. He says that in cross-examination in paragraph numbers 488, 489 and 493. He also says that in his witness statement.

PN1049

We emphasise the exchange of evidence - the evidence at paragraph number 488 and 489 of transcript of Mr Streets where, in relation to a mixed enterprise, Ms Angus asked him whether or not it was possible and reasonable at a mixed enterprise to have the piggery work covered by the Pig Industry Award and the crop work covered by the PIA and he says not if the same employees are engaged in both. The crossover work as it is defined is their concern.

PN1050

Further down at paragraph number 493 in response to a question, "Is it possible to negotiate particular agreements at the site level to resolve any crossovers?" there is a very plain answer, "No". With Sixth Gralloch Holdings there is always the issue of the so-called crossover work because it is part of their contract with the labour supply company that they may work in any part of the farm. For that matter employees could be asked to work for another legal entity albeit in connection with work on the farm and an example of that is in assisting to construct a silo complex as per Mr Smith's evidence in paragraph number 590. In other words, as long as the work is - - -

PN1051

THE SENIOR DEPUTY PRESIDENT: If they were working for another entity in that context, the way you put it then, they would cease to be employed by Sixth Gralloch Holdings. Do you mean that they might be required to work with another legal entity or do you say they can be - - -

PN1052

MR CALVER: Placed with another legal entity under a contract with Sixth Gralloch, your Honour - - -

PN1053

THE SENIOR DEPUTY PRESIDENT: Yes, I see. So if they are placed with them they are still continuing to be employed by Sixth Gralloch, is that what you are saying?

PN1054

MR CALVER: Yes, but working with another legal entity as opposed to being employed by them. Working in the building and construction industry but on the farm and we say that is consonant with the way in which the very senior Full Bench of the New South Wales Industrial Commission viewed the matter in Dalpalm v Minchen that I will go to later. That is, even a bulldozer worker working on a farm, we say, even someone constructing a silo on a farm comes within the scope of the PIA.

PN1055

We admit that Sixth Gralloch Holdings supplies labour to an enterprise, Kio-Ora, that runs a piggery that is in the top 5 per cent of the market, national, in terms of numbers. That fact was established through the evidence of Mr Streets and I refer in particular to paragraph number 454. However, Mr Streets, at paragraph number 458 of the transcript, went on to say that:

PN1056

A mixed enterprise is any enterprise that engages in more than one activity in terms of raising livestock or cropping or arable farming of any nature.

PN1057

Sixth Gralloch supplies labour in connection with primary production, any form of primary production or any work on the farm including building and construction work, including working with another legal entity on the farm to pursue that primary production work. Mr Streets, in evidence, made it quite clear that a mixed farming enterprise is not rendered something else because it runs a large number of pigs even in the top 5 per cent. At paragraph number 332 of transcript he attests to the fact that a mixed farm is not limited by the number of sows that a farmer might operate. And his words at paragraph number 495 are particularly important. Two awards don't work - my introduction:

PN1058

People say, well, I am either - - -

PN1059

THE SENIOR DEPUTY PRESIDENT: Sorry, what number is that, 490?

PN1060

MR CALVER: Paragraph number 495, your Honour.

PN1061

THE SENIOR DEPUTY PRESIDENT: 495, yes, thank you.

PN1062

MR CALVER:

PN1063

People say, well, I am either working under one award or the other and therefore if you have specific duties which don't come under that award then it is difficult to get them to do that sort of work. And it has got to be an enterprise that engages people with an all-embracing attitude and award cover so that you can actually direct their activities.

PN1064

Expert evidence that it is preferable to have one broad award. Ms Angus did get Mr Streets to concede that if people are dedicated, skilled and specialist in the piggery they should come under the Pig Breeding and Raising Award. That occurred at paragraph number 1502. However, those conditions don't apply to Sixth Gralloch. The employees informed of the fact that they may work anywhere on the farm and that is a clear condition of employment. Mr Smith says that clearly at paragraph number 660 and paragraph number 662 of transcript upon which we rely.

PN1065

Further, in re-examination, Mr Streets was quite clear at paragraph number 560 and 561 that the Pig Breeding and Raising Award should apply if that is their total operation - total operation. And that fits in with the use of the word "wholly", w-h-o-l-l-y, in the scope of the Pig Breeding and Raising Award. Clearly, that cannot be so for Sixth Gralloch. You saw that the piggery is not the total operation and in any event is a company which supplies labour in respect of all aspects of work on the farm.

PN1066

Why do we want the Pastoral Industry Award? Why is it appropriate for this enterprise and why has its use spread? Well, evidence is contained in Mr Streets' witness statement. Paragraph 10, the fourth and fifth and sixth paragraphs of his witness statement, talk about flexibility of hours and we rely on those words, particularly the paragraph that says:

PN1067

The burden of penalty rates would add unreasonable costs to a mixed farm enterprise and affect its viability in dealing with international competition in a global market -

PN1068

Sorry, your Honour - - -

PN1069

THE SENIOR DEPUTY PRESIDENT: I have got it.

PN1070

MR CALVER:

PN1071

...and the reliance on the pig industry to maintain and expand export opportunities. It is therefore imperative that mixed farming enterprises have the opportunity to utilise flexible working hours in their daily business.

PN1072

And, your Honour, you heard from both Mr Smith and Mr Streets that disastrous consequences when pork industry prices fell in '97 and how it was only through other aspects of a mixed enterprise that they managed to survive. The link with productivity and flexibility of work hours in the uncontested evidence there of Mr Streets is something we rely on. Now, at paragraph number 948 of transcript Ms Angus asserts that there are a number of criteria that you should examine and exercise in your discretion.

PN1073

We agree with her that a central consideration is, as she says at line 5 of paragraph number 948, that you need to assess the appropriateness of the scope and the content of the award that they have proposed and we have proposed. The scope is the major determinant. In a process of undertaking the assessment about the scope we argue that the cost of work in the Pig Breeding and Raising Award can be subsumed into the PIA and because it is an award that would cover what has been referred to by Ms Angus and Mr Streets as crossover work, then it is the award that should apply to Sixth Gralloch.

PN1074

The evidence points to that conclusion for the reasons outlined by Mr Streets. The evidence of Mr Smith is he desires the flexibility that has been pointed to by the expert. That is why the PIA should apply. Now, I turn to the considerations of a legal kind that we say should be taken into account in the exercise of your Honour's discretion. They are summarised in the outline and reduced to a number of points that shortly outline our argument. The first point is that we are not pressing the foreshadowed argument that Sixth Gralloch is not in the business of primary production.

PN1075

It is our contention that its supply of labour is, at the least, in connection with the primary production industry. That is why its membership of the Victorian Farmers' Federation Industrial Association confirmed in a letter which was tabled in the Commission makes it respondent to the Pastoral Industry Award because it is pursuant to the scope clause of the PIA operating in connection with the management, rearing or grazing of sheep, cattle, horses and other livestock per clause 5.4.1 of the Pastoral Industry Award. It is thus eligible to join the VFFIA and pursuant to that membership under the authority of section 149, subsection (1) paragraph (f), is currently bound to the PIA. I will come back to that important clause of the PIA shortly.

[10.30am]

PN1076

Interestingly, Sixth Gralloch is also bound through the same mechanism to the Horticultural Industry AWU Award, because the VFFIA is respondent to that award. Hence my communication to Ms Angus and the bench that part of my submission today would be to show how the potential conflict between that award the and the PIA is resolved. Bearing in mind the uncontroverted evidence of Mr Smith in paragraph 11 of NFF4, that he will be moving to diversify into horticulture, and that is one way in which all of the workers will be asked to work on the farm in connection with planting or picking. The inspection itself revealed the area where this ambition has some current manifestation. We say that clause 6.3 of the Horticultural Industry AWA Award is important. Your Honour, do you have a copy of the award?

PN1077

THE SENIOR DEPUTY PRESIDENT: Yes, I do.

PN1078

MR CALVER: We say that clause 6.3 is very important:

PN1079

Where an employer bound to this award is also bound by the Pastoral Industry Award 1998, agreement will be reached with employees as to whether this award is to apply.

PN1080

The clause quite clear says, look, if you are going to be bound to the Horticultural Industry Award, you are taken to be bound to the Pastoral Industry Award, and this award will only apply where agreement is reached with employees.

PN1081

THE SENIOR DEPUTY PRESIDENT: Would you say that any employer bound by the Horticultural Award is also bound by the Pastoral Industry Award?

PN1082

MR CALVER: Yes, because we would argue that any horticultural activity involves the growing of a crop, reinforced by the Ceres Cotton case. And that is why clause 6.3 is there. It underlines the NFFs contention about the PIA gazumping the other more industry specific awards. This point is canvassed in addition in Ceres' case at paragraphs 105 and 106 of the judgment of Deputy President Sands.

PN1083

Now, the Ceres case is attachment 6 of the binder that was circulated to yourself and filed and served. This matter is alluded to in paragraphs 105 and 106 of the judgment. However, Deputy President Sanz there was dealing with a predecessor award to the Horticultural Industry AWA Award, your Honour, and he was dealing with the Fruit and Vegetable Growing Storing Packing and Processing AWU Award .

PN1084

THE SENIOR DEPUTY PRESIDENT: Sorry, what paragraphs are you looking at?

PN1085

MR CALVER: Paragraph 105 and 106 on the Internet copy at pages 19 and 20 of the judgment.

PN1086

THE SENIOR DEPUTY PRESIDENT: Yes, I have it now, thank you.

PN1087

MR CALVER: As I said, your Honour, the Deputy President was referring to a predecessor award which has been subsumed into the Horticultural Industry AWA Award, which is the Fruit and Vegetable Growing Storing Packing and Processing AWU Award. He says at paragraph 106:

PN1088

The then clause envisages a situation where the work performed by an employer might be covered by the said award but the employer may be respondent to the Pastoral Industry Award ...(reads)... it is competent for both awards to have coverage.

PN1089

However, clause 6.3 now makes it plain that an agreement has to be reached about whether or not this award applies, on the assumption that the Pastoral Industry Award does apply. And there is a difference between the provision that DP Sanz was considering in this provision, because clause 6.2 that was then before DP Sanz said agreement should be expressly reached as to whether this award is to apply. The wording that changed is, "agreement will be reached with employees as to whether this award is to apply:. Hence, making the job of determining that the Pastoral Industry Award does apply much more clear than before DP Sanz. So clause 6.3 is one of the critical links in our argument.

PN1090

Our second point in our outline of submissions - and I will come back to scope provisions - our second point is that the roping-in award could be made quite easily by the displacement of the Pig Breeding and Raising Award and the insertion of the PIA. In other words, our client has no objection to be a named respondent to the Pastoral Industry Award through a roping-in as opposed to an organisational respondent, so that the operation of section 149(1)(f) could not be displaced by resignation.

PN1091

Our third point, unhelpfully numbered paragraph 4, relates to the principles that apply in the making of a first award, and how these have been set out in a full bench decision that governs this issue. It is attachment 1 of the folder of authorities circulated. It is PR 903661. I would like first to take the Commission to page 8 of the Internet copy. I would like to go to the fourth paragraph, which is the second one marked with a dot point. Unfortunately, the paragraphs are not numbered in the decision. It starts, "In our view, O'Meara J".

PN1092

THE SENIOR DEPUTY PRESIDENT: Sorry, which paragraph?

PN1093

MR CALVER: The paragraph that starts, "In our view, O'Meara J", page 8 of 13, your Honour.

PN1094

THE SENIOR DEPUTY PRESIDENT: Yes.

PN1095

MR CALVER: It says there that employers are entitled to an investigation of the facts of their case, but the full bench led by Munro J says:

PN1096

That requirement entitlement, however, is framed in a regulatory context in which the Commission will give weight ...(reads)... employer party into a widely applicable industry award. The Commission is obliged by its own principles to give weight to such considerations.

PN1097

"Widely applicable industry award." Despite some of the easing back of the rationale for use of a widely applicable industry award, with the acknowledged repeal of section 94 that the Commission discusses in the prior paragraph, the Commission is obliged by its own principles to give weight to such consideration. The bench says:

PN1098

Instances of the weight given to consideration about the most readily identifiable and widespread safety net may readily be found.

PN1099

And they go on with that process and that analysis. But they say, "the most readily identifiable and widespread safety net". That goes back to the point that there are 19 named respondents reduced to 16 for the Pig Breeding and Raising, and Mr Street's clear evidence is that 70 per cent of the Pig Breeding and Raising industry is governed by either the Pastoral Industry Award, or a common rule award, and is not bound by the Pig Breeding and Raising Award.

PN1100

These paragraphs stress the importance of the most widely applicable industry award. That is a critical consideration. It dovetails with the evidence that an agriculture diversity means that the profits of an enterprise are not the subject of potentially fatal fluctuations in the price of one commodity in any particular year. Those are very important considerations. In other words, the primary consideration to be derived from that principle, we say, sits happily with the facts in this case. It sits happily with the fact that this case is partly about the importance of profitability when running a mixed enterprise, and happily with the nature of Sixth Gralloch which is to supply labour to primary producers, principally to Kio-Ora.

PN1101

It also sits well with the fact that those who make capital improvements to primary production enterprises are also covered. That is therefore why the proposition is contained in paragraph 5 of our outline, that the Commission should give weight to the most readily identifiable and widespread safety net award, which we say is the Pastoral Industry Award. Proposition 6 is that the same full bench case is authority for the proposition that the first award extension to an existing award principle should apply for making a first award, including a roping-in award. The first award principle is before the Commission in attachment 2 at page 11 of the green folder, page 7 of attachment 2, and it is very broad:

PN1102

Any first award or any extension to an existing award must be consistent with the Commission's obligations under Part VI of the Act.

PN1103

Then there are four specific matters that the Commission would have particular regard to. Now, each of these conditions applies in this instance: that is, that both awards have been examined for the section 89A criteria, and they have both been adjusted in accordance with paragraph (a) for the National Wage Case decisions in 1989, and the award simplification criteria have been applied to them. I will come back to paragraph (b) when I deal with the issue that Ms Angus raised in relation to the classification system.

PN1104

So because of the breadth of that principle, the width of your discretion, your Honour, is great. That is our proposition number 7: the discretion vested in the Commission in making a roping-in award is wide, and that is confirmed at page 10 of PR 903661, and it is in the paragraph that is marked - it is not marked, it is under paragraph number 23, an extract from another case. The discretion referred to there is obviously a very wide one, and the bench alludes to that fact. The width of that discretion, the only instance where the width of that discretion would not be available is where the content of the award has not been properly modified in relation to the criteria set out in points A to D of Principle 11.

PN1105

We say there is nothing in either the PIA or the Pig Breeding and Raising Award that offends against any of those points. There was some argument, especially at paragraph 976, that the key difference in the awards relates to the classification structure. However, the evidence from both Mr Streets and Mr Smith was that the descriptor in the classification structure of the Pig Breeding and Raising Award that was referred to by Ms Angus, was wide enough to encompass any farm work. That is entirely consonant with the way that the PIA classification structure operates, a matter I will go to in detail when I examine numbered paragraph 10.

PN1106

The width of that level of classification, once the scope provision kicks in, is not limited. It is merely set out in a more articulated form than under the Pastoral Industry Award. Paragraph 8 merely reiterates that the Commission should exercise its discretion having regard to the Commission's obligations under Part VI of the Act in terms of the first award principle. Your discretion, therefore, is to be exercised having regard to what? Well, existing rates and conditions of employment are a main consideration in the exercise of the Commission's discretion and pursuant to its obligations under Part VI. That is clear from page 9 of PR903661.

PN1107

That is also reiterated in Edith Cowan, a decision with which you are familiar, your Honour. I believe you were on that bench. Page 4 of Edith Cowan sets out that, prima facie, existing conditions should apply. The fact is that the prima facie consideration can be displaced. However, there is nothing, we say, in the facts of this matter that the union has proposed that displaced that prima facie proposition. We say that the decision in MEAA still holds as a prima facie proposition. Now, page 37 of print M2565 has the critical words upon which we rely. There seems to have been some bizarre gremlin that also got on that particular page, when the Full Bench there is dealing with the application of a first award principle.

PN1108

What I have done is printed it out again for ease of reference. It is now page 38 of 50, instead of page 37 of 48, one of the problems with different printers and the Internet, your Honour, so I will hand that up so that we are all looking at the same extract. It is still from print M2565 and it still contains - - -

PN1109

MS ANGUS: Which print is that?

PN1110

MR CALVER: This is print M2565, the MEAA decision. That is shown as attachment 4 in the green binder. Now, these passages are very useful. The Commission endorses the agreement of the parties that when making a first award proper, the main consideration shall be that the award meets the needs of the particular industry or enterprise, while ensuring that the employees interests are also properly taken into account and that structural efficiency principle considerations apply, then the last paragraph in considering this issue:

PN1111

These passages in our view emphasise the importance of existing rates and conditions in the making of an interim first award principle. This is, however, a prima facie position and can be displaced.

PN1112

There is nothing that the union has presented to this Commission to displace that prima facie presumption. We say it applies here, the PIA currently applies at Sixth Gralloch and should continue to apply. What is the particular industry that the Commission is referring to when it talks about the needs of the particular industry or enterprise? We say the particular industry is the broad agricultural industry, that is a mixed enterprise, not the requirements of the pig breeding and raising industry.

PN1113

The needs of a farm whose sole endeavour, whose sole endeavour, whose employees are wholly engaged in pig breeding and raising, may well be focused in the direction of the Pig Breeding and Raising Award, but not in respect of a company that supplies labour to primary producers on a commercial basis and that supplies labour principally to a mixed farm. Nothing displaces that as a main consideration in this case and there are no arguments before you that have attempted to address that issue. We say that your discretion should be moved by that prima facie consideration. Clause 10 of the outline is at the nub of the NFFs submissions. The commencing point for that consideration is as I mentioned before, clause 5.4.1 of the Pastoral Industry Award. That award clause should be read:

PN1114

This award shall apply to all employees other than those specified in sub-clause 5.4.2 hereof not relevant to these proceedings employed by respondent employers in connection with the management, rearing or grazing of sheep, cattle, horses or other livestock -

PN1115

and we say other livestock clearly encompasses pigs, which we will return to -

PN1116

the sowing, raising or harvesting of crops, the preparation and treatment of land for any of these purposes and the shearing or crutching of sheep.

PN1117

The quoted provision was previously sub-clause (a) of clause 6 of the Pastoral Industry Award 1996, the successor to the Pastoral Industry Award 1965. The previous provision was generally known as the scope clause and for ease of reference, I will refer to the clause just read as the scope clause. The scope clause is clearly drafted in broad terms. The current wording of the scope clause was inserted in the Pastoral Industry Award 1965 in a decision of Commissioner Donovan relating to various aspects of that award. That decision is at attachment 5 of the binder circulated. In that decision the Commissioner noted that the then current award clauses covering definitions and interpretation and the scope had:

PN1118

... been rewritten for the purposes of clarity.

PN1119

And these words are very important. They are at page 456 of the reported decision and that the scope of the award has been widened. It is attachment 5 of the binder at page 456. That is contained under the heading definitions clause 3 and scope clause 6. While the Commissioner's decision was the subject of an appeal to a Full Bench of the then Australian Conciliation and Arbitration Commission, the terms of the scope clause were not put in issue in that appeal. Despite the fact that the scope clause adopted in 1967 by Commissioner Donovan was wider than had been the case prior to that date, questions have remained as to just how wide the scope clause really was until Ceres.

PN1120

In the case of Australian Workers' Union New South Wales v W.J. and A. Ceres, which is an unreported decision - it is attachment 6 in the folder circulated, as I have said previously a decision of Deputy President Sanz - it was contended by The AWU that the Federal award both historically and in practice was restricted in its application to sheep and cattle station workers, but that submission was firmly rejected, was firmly rejected, in the light of the ordinary meaning of the words in the scope clause and in the light of the development in the relevant award history, concluding with the decision of Commissioner Donovan I have referred to.

PN1121

We rely on Ceres in respect of these proceedings. We rely on Ceres because of the excellent tracing of the Pastoral Industry Award history that it contains. While the contention that the Federal award is restricted in its application to sheep and cattle station workers was untenable, with respect to those who advanced that argument, the application of the Federal award to rural enterprises that are engaged in one predominant agricultural activity is also the case. That is our argument. The application of the Federal award to rural enterprises that are engaged in one predominant agricultural activity can also be argued to be the case from Ceres.

PN1122

Despite the long history of State award regulation of many types of farming enterprises, in Ceres, the Pastoral Industry Award was held to prevail and those authorities should be highly persuasive in this Commission and highly persuasive, your Honour, in the way that you exercise your discretion.

PN1123

THE SENIOR DEPUTY PRESIDENT: There the conflict was between, was it, a Federal award and a State award? Is that right?

PN1124

MR CALVER: Indeed, your Honour.

PN1125

THE SENIOR DEPUTY PRESIDENT: So in the end result, any finding that the Pastoral Award had application meant as a matter of constitutional law that the State award did not.

PN1126

MR CALVER: Indeed, your Honour.

PN1127

THE SENIOR DEPUTY PRESIDENT: Whereas where there is a conflict between two Federal awards and subject to what you want to say in due course about how that is resolved, if you were to follow North Western Health or whatever that case is, the one that I did refer to in the other decision, then it may well be that two awards can apply.

PN1128

MR CALVER: Two awards can apply where there is a doubt about what the entitlements are. In the Federal jurisdiction, if two awards apply and one can subsume the other in its scope, then that award in effect overrides that other award.

PN1129

THE SENIOR DEPUTY PRESIDENT: You say that as a matter of law.

[11.00am]

PN1130

MR CALVER: I say that as a matter of law, because - - -

PN1131

THE SENIOR DEPUTY PRESIDENT: Have you got authority for that?

PN1132

MR CALVER: Well, it is evident from the terms of the decision which you refer to and I am going to distinguish that case in some detail, that it relates to a requirement that the obligations that are opposed on the employer are met, that all of the obligations on the employer are met.

PN1133

THE SENIOR DEPUTY PRESIDENT: But the obligations can be met by complying with whatever is the higher of the requirements of the two awards. Isn't that the case?

PN1134

MR CALVER: If there are two awards, if there are two awards that apply and one applies to all of the employees and covers all of their obligations, then they can be met by complying with that award. I have the decision here. I can advance that argument, but if I can just come back to that, your Honour, after I finish going through Seery and the bulldozer case - - -

PN1135

THE SENIOR DEPUTY PRESIDENT: I am happy for you to do that, but I just say at this point that there appears to me to be a possible distinction between the legal effect and what should be the case. In other words, it may be and this is, of course, subject to what you put to me and I know it is not a determined view at this stage, it may be that two awards can legally apply, but that shouldn't be the case and that can be corrected by arbitral decision.

PN1136

MR CALVER: Yes, the extract - - -

PN1137

THE SENIOR DEPUTY PRESIDENT: Yes, I don't want to divert you from what you are - - -

PN1138

MR CALVER: No, whilst we are having an exchange about the matter, I will go to my argument in general terms. The quotation from Health Services Union of Australia that you rely upon, page 9 of 14 of the Internet says:

PN1139

The situation where two awards govern the terms and conditions of employment of certain employees whilst relatively unusual ...(reads)... thus obeying all its obligations.

PN1140

Thus obeying all its obligations. Now, that means that in relation to this matter Sixth Gralloch could obey its obligations for those engaged in the raising of livestock by applying the Pastoral Industry Award. It is applied an award of this Commission, it has obeyed all of its obligations within the scope of that award which subsumes the scope of the other award and that very argument, your Honour, is, I would apprehend, was in your mind in the following paragraph where you said when looking at the awards:

PN1141

There is nothing contained in the former that would suggest that it was in any way or to any extent intended to replace the latter.

PN1142

Now, we say the Pastoral Industry Award can be construed so that it subsumes the other agriculture awards. It does that in respect of the Horticulture Award quite specifically clause 6.3 and we say it does that quite specifically in relation to the Pig Breeding and Raising Award because they have to be wholly, which means totally, engaged in pig breeding and raising for it to apply.

PN1143

THE SENIOR DEPUTY PRESIDENT: No, that is not right. You see, it seems to me that cannot be right. If the Pastoral Industry Award applies to any employer who manages, rears or grazes pigs, whether they do that as their sole operation or as part of another operation they are covered by the Pastoral Industry Award if that is the scope of the award.

PN1144

MR CALVER: Yes.

PN1145

THE SENIOR DEPUTY PRESIDENT: You then have another award which says if they do it in a certain way, on your argument they are covered by the Pig Breeding Award, but that does not mean they are not covered by the Pastoral Industry Award. The Pig Breeding Award does not say this is to the exclusion of the Pastoral Industry Award, anyone bound by this award is not bound by the Pastoral Industry Award, and you satisfy your obligations to both awards by applying whichever is the better. Now, that is what I am really saying there.

PN1146

MR CALVER: Well, your Honour, we reject that because the Pig Breeding and Raising Award cannot apply to the balance of the farm work of the work of those Sixth Gralloch.

PN1147

THE SENIOR DEPUTY PRESIDENT: I accept that. I accept that and if I can give you the classic case that arose and it used to arise in the clerical area quite regularly at one stage, when shops such as - I am trying to think of the name of them in those days, but they were mainly electrical goods shops, you know, the sort of Billy Guyatt type shop and the way they used to be run was you dealt with the salesman and the salesman sold you the television set, handed the paperwork to a central station in the middle of the store and a clerk then finalised the paperwork. The query was whether the clerk was in retail or clerical and there was a decision in the State jurisdiction when it existed, the old, old State jurisdiction here which said both.

PN1148

MR CALVER: Yes. The difference between those cases and what is currently before you, your Honour, is that you are being asked to rope the company into an award. You are being asked to rope the company into an award which would impose a clash of obligations. Now, we say that that is not a situation which is the benefit of the company for the cross-over work. We say that the work that currently is done in the piggery is covered by the award that currently applies and therefore why would the Commission seek to impose another award where one can clearly be intended to displace the other. That is the - - -

PN1149

THE SENIOR DEPUTY PRESIDENT: But that is not the legal argument. That is an argument as to discretion. You know, in other words if you go to that next paragraph in Borgecraft, it may well be undesirable or contrary to the public interest to have this situation and therefore why should the Commission proceed to impose that on an employer when arguably it is not imposed currently on the employer because the employer is not bound by the Pig Breeding Award. It is not a party to the Pig Breeding Award.

PN1150

MR CALVER: And that is the currency of our argument.

PN1151

THE SENIOR DEPUTY PRESIDENT: That is why the distinction I was trying to make between the legal argument and what in this particular situation the Commission should do because the Commission is looking to exercise a discretion. The Commission is not determining like a court might have to determine which award does currently apply because it is respondent to both awards.

PN1152

MR CALVER: I think I am responding to you by saying that that is still a legal argument in the sense that we have to show that the Pastoral Industry Award can subsume the work of the Pig Breeding and Raising Award as a legal question, one that has been determined elsewhere, particularly in the New South Wales Industrial Relations Commission and I think that we are completely ad idem. We would not want the situation where we came to this place to quote authority say in an under-payment of wages case in respect of the Pig Breeding and Raising Award and the Pastoral Industry Award where we were arguing that the total work of one of the employees at Sixth Gralloch wasn't covered by the Pig Breeding and Raising Award because they spent a fortnight planting or doing some other farm work which excluded them from the award totally.

PN1153

In other words, where part of our argument is addressed to avoiding the very clash that you were addressing in PR904326, part of our argument is that applying the better conditions would not automatically lead to the obeying of all of its obligations because of the very nature of the scope clause in the Pig Breeding and Raising Award. It doesn't encompass all of the work of the farm. Now, that argument has to proceed from legal principles, not the sort of argument that you are alluding to, your Honour, which I don't think is in contention.

PN1154

What I would say is in contention is the manner in which you should exercise your very wide discretion and we are saying partly don't exercise your discretion to lead to the sort of clash that you explicated in the decision that has been circulated and I think we are absolutely ad idem on that point, your Honour, but I do have to go to Ceres Cotton and the other cases. Even though they do arise from a constitutional legal issue at their nub, they are the only instances since 1967 where the width of the Pastoral Industry Award has been recognised by a tribunal which is persuasive in this place.

PN1155

THE SENIOR DEPUTY PRESIDENT: Yes, I am not saying you shouldn't do that. I guess that initially started by saying that - making that reference to in the end result Ceres is decided on a constitutional question. Deputy President Sanz didn't have to determine which of two Federal awards might apply or whether both applied, but it was a case of, well, if the Pastoral Industry Award applies, then it covers the field as far as the State is concerned and the State award can't apply.

PN1156

MR CALVER: Absolutely, but in my respectful submission, that doesn't mean that the considerations which led Deputy President Sanz to be able to answer that question in the manner that he did are irrelevant.

PN1157

THE SENIOR DEPUTY PRESIDENT: I am not saying that it is. I am saying that his analysis of the history and the scope of the Pastoral Industry Award may well be very valuable. I am not denying that.

PN1158

MR CALVER: We would contend that they are invaluable because they are so comprehensive and so correct and we particularly refer to paragraph 63 of Ceres, the expression that:

PN1159

The award operates with all the variety that such a coverage can bring should inform this Commission's decision -

PN1160

that the award operates with all the variety that such a coverage can bring is a very short and pithy way to sum up how the Pastoral Industry Award applies and we say that your discretion should resonate with those words, your Honour. With the contention that the Federal award is restricted in its application to sheep and cattle stations being untenable, we say that it was quite possible that Deputy President Sanz could have said a more specific State award overrode a more general Pastoral Industry Award. He could have reached that conclusion because the Pastoral Industry Award did not cover in the specific detail required, not cover the field in regard to that work.

PN1161

A decision that we rely upon to substantiate our argument further is not only Ceres, but the decision of Cahill J in the then capacity as Deputy Chief Judge of the Industrial Court of New South Wales in Blight v Ecob, another unreported decision that has been circulated as attachment 7 in the folder. In that case it was contended that Mr Geddes, the employee of Mr Blight, the respondent to the Federal award:

PN1162

...was not regulated, it is employment by the Federal award, as he was principally engaged in Mr Blight's sheep milking enterprise on his property, Marden, in New South Wales.

PN1163

It was argued by Mr Geddes's representative that his employment was regulated by the New South Wales Dairying Employees State Award and that he was a dairy hand under that award. In deciding that the Federal award did apply to the employment of Mr Geddes, his Honour examined the evidence as to the work performed by Mr Geddes on the property and whilst recognising that a significant part of that work related to the sheep milking enterprise, he also noted that Mr Geddes had a range of other duties in connection with sheep, such as moving mobs, assisting in shearing, performing drenching, attending to them while they were fly-blown, plus attention to other general farm work.

PN1164

On the basis of this evidence, his Honour concluded there was no doubt that the major and substantial work performed by Mr Geddes was in relation to sheep. His Honour then turned his attention to the scope clause of the Federal award and decided that the expression the management, rearing or grazing of sheep was applicable to the duties which Mr Geddes performed. Clearly the decision in Blight v Ecob establishes that dairy farming activities can also fall within the scope of the Federal award. Further, that the management, rearing or grazing of sheep could cover milking them.

PN1165

That is pertinent to this particular case, because it covers the activities - whilst one doesn't milk pigs, it covers the activities of managing the pigs in all of its intricacies. Apart from the sheep milking duties of Mr Geddes, he undertook a range of activities relating to the care of Mr Blight's sheep, consonant with the care that is taken of Mr Smith's pigs and Mr Blight's rural enterprise was a mixed one in that activities on the property included rice growing, wool industry and sheep milking. You could substitute ..... bean growing, sheep raising in the wool industry and pig raising in respect of Mr Smith.

PN1166

The case was thus concerned with a rural enterprise that contained a dedicated dairy operation, but the employees' duties were not restricted to work in or about the dairy as with the employment terms and conditions of those engaged by Sixth Gralloch. Hence, the case is entirely on point here and we contend that you should be persuaded by that case in the exercise of your discretion. It is, in our view, beyond doubt from this decision that where an employee performs a range of duties in relation to particular livestock, in that instance cattle, in Mr Smith's instance pigs on a property, then the Federal award would apply to that employee.

PN1167

That is, on the basis that the employees employed in connection with the management, rearing or grazing of cattle - or pigs in this case. We say you could substitute any other livestock for that reasoning. The question is then whether the expression, management of other livestock, is wide enough to embrace such a situation as your Honour saw in operation. In our clear view, is that the answer is yes. It should be appreciated that most farm workers, especially casuals, would be employed on the basis that they would undertake a variety of tasks in relation to cattle or pigs, such as herding, hygiene and feeding, even if the predominant duties were milking the cattle or, say, farrowing for pigs.

PN1168

The employees are clearly employed in connection with the management of livestock. In essence, our contention is the expression, management in the scope clause is wide enough to embrace a dedicated pig industry worker on farm. And paragraph 11 contains a range of authorities that show that livestock is, indeed, a very wide term and I will go to some of those authorities now. First is attachment 10, Australian Commodity Statistics, and it is a table taken from that AMEV publication. It shows the value of Australian exports and has a total - total livestock exports. As part of that total we have pig meat. The next is an extract from the Concise Oxford Dictionary, not a very good extract, I might say, and it says:

PN1169

Livestock means animals, especially on a farm. Regarded as an asset.

PN1170

I don't know if pigs are regarded as an asset during 1997 when they lost money, but the meaning the term is not in any way - - -

PN1171

THE SENIOR DEPUTY PRESIDENT: You would have to go to the definition of asset there.

PN1172

MR CALVER: Yes, true. The next attachment is Cooks v CSR Limited, a judgment of Madgwick J:

PN1173

The legal principles which apply in interpreting an award which were explicated very well by DP Sanz and referred to are set out under legal principles on the second page of the attachment, which is the third page of the judgement, and they reject a trite or pedantic approach to award interpretation.

PN1174

And we are relying on those two paragraphs under legal principles and going through these materials to show the livestock should be given a broad meaning. The next attachment, attachment 13, is an extract from the Victorian Livestock Disease Control Act and again livestock is given a very broad meaning:

PN1175

Livestock means any non-human animal -

PN1176

luckily -

PN1177

and any fish or bird whether wild or domestic, egg intended for hatching or bee.

PN1178

And that accords with the legal principles that are set out in Cooks v CSR. Next there is an extract from a livestock and only the front page of the Livestock and Meat Comment from the Queensland Livestock and Meat Authority. It has an article that deals with the Queensland pork market and on the front are pictures of pigs. Clearly, again, in ordinary parlance livestock includes pigs. Attachment 15 is another statistical official statistical - - -

PN1179

THE SENIOR DEPUTY PRESIDENT: I don't want to be pedantic about it, but it is the livestock and meat content. Why couldn't it be said pigs are meat, not livestock? Is that - but really, I am querying just the value of the front page, that is all.

PN1180

MR CALVER: I'm sorry that we did not circulate the article. Well, let me say, your Honour, that there is an article that I didn't think that you would want to read about the Queensland pork market result where pigs are colligated as livestock and there is an article also about pig health monitoring, to further substantiate that pigs are livestock - - -

PN1181

THE SENIOR DEPUTY PRESIDENT: Ms Angus, is - do you contest the proposition that pigs are livestock?

PN1182

MS ANGUS: No, I probably don't in terms of ordinary daily usage. I think a lay person is - - -

PN1183

THE SENIOR DEPUTY PRESIDENT: Well, for the purposes of the Pastoral Industry Award?

PN1184

MS ANGUS: Well, that is not central to our argument.

PN1185

THE SENIOR DEPUTY PRESIDENT: No.

PN1186

MS ANGUS: Our argument is that the existence of one award does not exclude the right - the application of another award.

PN1187

THE SENIOR DEPUTY PRESIDENT: I understand that, but for the purpose of what is now being put to me by Mr Calver do you dispute, put it that way, that pigs would fall within the word livestock as it appears in clause 5.4.1 of the Pastoral Industry Award?

PN1188

MS ANGUS: I think it is pretty clear that the common usage of livestock would extend to the raising of pigs, too.

PN1189

THE SENIOR DEPUTY PRESIDENT: Yes. I would have said, Mr Calver, I would need some convincing that pigs were not livestock.

PN1190

MR CALVER: Yes. Thank you, your Honour, and now, the reason we have gone into this in so much detail is that the articulation of those arguments is necessary in order to show that the work in managing pigs encompasses all of the tasks that are involved and that is why we next moved to - moved back to Blight v Ecob where - - -

PN1191

THE SENIOR DEPUTY PRESIDENT: You see, the reason I raised that is that is you go to the next of your definitions - - -

PN1192

MR CALVER: Yes.

PN1193

THE SENIOR DEPUTY PRESIDENT: - - - which was the Macquarie Dictionary that describes livestock as horses, cattle, sheep and other useful animals kept or bred on a farm or ranch.

PN1194

MR CALVER: Yes.

PN1195

THE SENIOR DEPUTY PRESIDENT: If pigs are kept in a piggery and only in a piggery and not on a farm or ranch they would not be livestock under that definition.

PN1196

MR CALVER: Well, I would not put that point to your Honour. I would contest that interpretation.

PN1197

THE SENIOR DEPUTY PRESIDENT: Well, you have put that definition before me, you see.

PN1198

MR CALVER: We put it before you, yes.

PN1199

THE SENIOR DEPUTY PRESIDENT: But as I say, I would have some difficulty in accepting an argument that pigs were not livestock for the purposes of the relevant clause of the Pastoral Industry Award.

PN1200

MR CALVER: Thank you, your Honour.

PN1201

THE SENIOR DEPUTY PRESIDENT: And I think that is as far as we need to take it at this stage.

PN1202

MR CALVER: I won't go to your point about the Macquarie Dictionary other than to say that a piggery by its very nature in the context of this case was located on a farm and - - -

PN1203

THE SENIOR DEPUTY PRESIDENT: Yes, I understand that, and it may well be the definition in the Macquarie Dictionary of farm would encompass piggery.

PN1204

MR CALVER: Yes, that is another point that can be made.

PN1205

THE SENIOR DEPUTY PRESIDENT: But I don't think we need to take it any further.

PN1206

MR CALVER: Good. Thank you. Then let me next move on to the term, manage, in the context of what is done at the Kio-Ora Piggery by those engaged by Sixth Gralloch and we rely on the definition of manage. It is in Blight v Ecob where Kay J looks cited the Shorter Oxford Dictionary to include:

PN1207

To cause persons, animals etcetera to submit to one's control and to take charge of.

PN1208

That is certainly, we would say, or what we saw at the piggery. In the Seery case it was also contended that the Federal Award was never intended to apply to an intensive cotton growing operation, but Deputy President Sanz found that in light of the ordinary meaning of the words that the sowing, raising or harvesting of crops the award did so extend. There was no appeal from that decision, so one must assume that it is recognised that intensive farming operations can come within the Federal Award.

PN1209

And we would so contend on the highly persuasive and comprehensive assessment of the question undertaken by DP Sanz. That goes to your point about farm or ranch, too, your Honour. We have taken your Honour to the general and traditional principles of the interpretation of awards. I shall skip over that argument. We say that the management of pigs would include all the tasks that your Honour saw on the farm and we rely upon all of the authorities cited in paragraphs 10 and 11 of the outline to that effect.

PN1210

The next point relates to the expression, station hand, with its obvious reference back to pastoral stations. That might seem somewhat out of conformity with the now extended scope clause, because the next extended scope clause embraces a very wide range of rural holdings, not just sheep or cattle stations. In the light of later decisions in the New South Wales Industrial Relations Commission, which are again highly persuasive, nothing turns on this point, a matter I will develop shortly and which DP Sanz deals with in paragraph 69 of Seery, which I will just take the Commission to again in attachment 6. Just as Mr Smith calls his farmhands general hands, so was the case in Seery Cotton, paragraph 69, quoting from it now:

PN1211

I note, nevertheless, the respondent describes the employees as farmhands and not station hands. In my view little turns on this distinction and does not derogate from my primary finding.

PN1212

Furthermore when different grades of station hand were introduced into the 1956 Pastoral Industry Award, Commissioner Donovan had something to say about this, and that is why we have included the 1957 CAR 88, page 66. I direct the Commission's attention to page 69, which is located under attachment 9 in the circulated folders. On page 69, the second paragraph, Commissioner Donovan said:

PN1213

The type of employee designated as a general station hand is required to have had at least two years experience in the industry and will be capable of performing most of the functions covered by the classification of employment in the union's application. He would, in effect, be a mixed functions employee.

PN1214

"A mixed functions employee." Now, those remarks support an argument that because the concept of a station hand is that of a generalist or a mixed function employee, a person who was employed in a specialist role on a rural property was not a station hand and therefore not covered by the federal award. We say that argument would take the matter too far and is wrong. We say PIA covers all specialists who work on a farm. In this regard we need to take the Commission to Dalpalm v Minchen, circulated at attachment 8.

[11.30am]

PN1215

Dalpalm v Minchen is a highly persuasive decision. It is a decision of a Full Bench of the Industrial Relations Commission of New South Wales in Court Session. One of the issues on appeal was whether the employee in question, Ivan Minchen, was a station hand under the Federal Award even though his major and substantial employment on the property in question, a rural property, was as a bulldozer operator. In the court below the Chief Industrial Magistrate for New South Wales had held that as Mr Minchen was a specialist bulldozer driver whose employment was regulated by a State Industrial Award, the Plant, etcetera, (Operators on Construction) State Award, he was not a station hand within the meaning of that expression in the Federal Award.

PN1216

In that regard it was thought to be relevant that Mr Minchen was specifically employed to undertake classic construction jobs on a rural property such as building roads, dams and an airstrip, quite consonant with the work that you saw being undertaken on the Kio-Ora farm in construction of silos and constructions of a new weaner unit. It was held by the Chief Industrial Magistrate that Mr Minchen was required to exercise specialist skills operating expensive and major items of plant.

PN1217

As it turned out it was not necessary for the Full Bench to determine the question of Federal versus State Award coverage as they held, for reasons that are presently material, that the Plant Operators Construction State Award did not apply to the employment of Mr Minchen. However, the Full Bench made some very interesting and relevant comments and they said that the magistrate, in making the finding I referred to, fell into error in the approach which he adopted to the construction of the Federal Award as Cahill J observed in Blight v Ecob.

PN1218

The application of the Federal Award to a contract of employment is ascertained by determining whether the employees duties fall within the provisions of the scope clause of that award. That is a vital finding reinforced by a Full Bench of the IRC in Court Session, the application of a Federal Award to a contract of employment is ascertained by determining whether the employees duties fall within the provisions of the scope clause of that award. Now, I take you to page 11 of attachment 8. If we look at the second last paragraph. Where I was quoting from before was the first paragraph under the Federal Award:

PN1219

The magistrate fell into error in the approach which he adopted and the application of the Federal Award to a contract of employment is ascertained by determining whether the employees duties fall within the provisions of the scope clause of that award.

PN1220

I know I have said that three times but that is absolutely critical. And then in the paragraphs that I refer to on page 10 they say why he was covered - why Mr Minchen was covered by the Pastoral Industry Award:

PN1221

The airstrip built by Mr Minchen was built to enable aerial spraying and sowing of the property ...(reads)... and that he was a station hand under the Pastoral Employees Award, the award made by that committee.

PN1222

A very persuasive decision we would suggest, your Honour, in the exercise of your discretion in this matter before you. Now, what can be taken from the remarks of the bench. It will be seen from those remarks that the bench, while taking into account the provisions of the Federal Award relating to station hands regarded the terms of the scope clause as the central determinant of the application of the Federal Award to the employee in question.

PN1223

THE SENIOR DEPUTY PRESIDENT: In Dalpalm? In Dalpalm you are talking about?

PN1224

MR CALVER: Yes, sir.

PN1225

THE SENIOR DEPUTY PRESIDENT: Weren't they dealing with two State Awards?

PN1226

MR CALVER: The finding that they made in respect of his work was in respect of the State Award but they did in obiter dicta reinforce what was found by Cahill J in Blight v Ecob on page 11, your Honour, and - - -

PN1227

THE SENIOR DEPUTY PRESIDENT: It is the same wording isn't it?

PN1228

MR CALVER: Yes, and that is the second point that it is - that the State Award was a mirror of the Federal scope provision. So in both regards it reinforces our point, we would contend. It would seem that the bench was not concerned that Mr Minchen was truly a specialist bulldozer operator performing on a full time basis duties which one would not normally expect to see a station hand undertake.

PN1229

And in light of those comments - in light of the comments on page 10 of the mirror State Award that I have referred your Honour to it is not surprising that the bench took the view that the specialist nature of the work performed by Mr Minchen nevertheless allowed him to fall within the terms of the scope clause of the Federal Award in that he was an employee engaged in connection with the management, rearing or grazing of sheep, cattle, horses or livestock, the sowing, raising or harvesting of crops, the preparation and treatment of land for any of these purposes.

PN1230

Now, my contention is that it will be seen from that judgment that the overall effect of the line of reasoning adopted is that so long as an employee's work falls within the words contained in the scope clause, then that employee will be a station hand within the meaning of the award. The question then only is to which of the three classifications of station hand the employee should be assigned? In effect this line of reasoning involves reading the definition of station hand in clause 34 in an all-embracing way, that is interpreted to mean an employee to whom the scope of clause of the award applies. We say that is an interpretation which your Honour should adopt.

PN1231

All of Mr Smith's employees fall within the scope clause of the award. Thus the end result of the basis of all of those authorities discussed is that a person engaged as a specialist worker on a rural property where the employer is bound by the Federal Award, as Mr Smith is, will be covered by the Federal Award whatever might be the employee's speciality provided that the work comes within the words set forth in the scope clause. And we reinforce that argument because it dovetails exactly with the earlier notion that we presented to your Honour that by its terms the Federal Pastoral Industry Award gazumps other agricultural awards.

PN1232

And that, in the highly persuasive reasoning of the Full Bench of the Industrial Relations Commission in Court Session can be the only way to read it. Now, that takes us back to the exchange we had and it was at that point that I intended to refer to PR904326, the Borgcraft matter, because what is the distinction between the line of reasoning there and the reasoning that is articulated at page 9 that we referred your Honour to before? Well, it is quite clear that in the paragraph under the quotation from the Health Services Union of Australia case that you mention, you say:

PN1233

There is nothing contained in the former award, that is the Food Preservers Award 2000, that would suggest that it was in any way or to any extent intended to replace the latter, that is, the Pastry Cooks Victoria Award.

PN1234

So that we say that that is not the case in respect here. We have got the horticultural industry where clause 6.3 sums up, encapsulates for the horticultural industry what we say is the way that the Pastoral Industry Award must be interpreted. We say that that should be applied in respect of other agricultural awards and that the discretion that you exercise should be related back to the two main considerations finding the most widely applicable industry award that is established in the case we relied on, PR903661, and maintaining existing terms and conditions of employment that suit the farm. Those existing terms and conditions of employment are the Pastoral Industry Award. So that also takes us to the Pig Breeding and Raising scope clause because we say it is restricted. And I will just lay my hand on it, your Honour. Yes, it is clause 5, Application of Award:

PN1235

This award shall apply to the Australian Workers Union and its members and to the employment of persons whether members of the union or not who are wholly employed in or in connection with the breeding and raising of pigs.

PN1236

Now, the dictionary definition of "wholly" was not circulated - I apologise for that. This is the Macquarie Dictionary and it says - - -

PN1237

THE SENIOR DEPUTY PRESIDENT: No, need to mark this.

PN1238

MR CALVER: No, sir. Thank you. It says, "Entirely or totally - totally employed". Now, the evidence in this matter is that no-one is totally employed in the piggery. They have asked to do tree-planting, they will be asked to do work in horticulture if it applies. In addition, that is the reason that this award has such limited coverage - 16 people - even though the evidence of Mr Streets was that they conducted other work. This award would only apply to those people totally employed in the piggery.

PN1239

And we say that you should exercise your discretion not in respect of a small number of people who, for the future, may be totally employed in the piggery, but having regard to the nature of the enterprise in its entirety, that is, a mixed farm with a piggery upon it. We say that you cannot dissociate the piggery from the balance of the enterprise because employees who work in the piggery also, from the evidence, work elsewhere on the farm. We say that the Commission, in paragraph 12, should exercise its discretion in favour of one safety net award. We say that this advances the objects of the Act particularly the object set out in section 88A(c):

PN1240

Awards are simplified and suited to the efficient performance of work according to the needs of particular workplaces or enterprises. The efficient performance of work according to the needs of particular workplaces or enterprises.

PN1241

Now, it was the clear evidence of Mr Smith that he did not like the provision in the Pig Breeding and Raising Award which stipulates that each day must be taken in its own - clause 14.3 from memory - that each day must be taken in computing overtime. That clause is 14.3:

PN1242

In computing overtime each day's work shall stand alone.

PN1243

And it was his clear evidence that he did not like that provision, that the Pastoral Industry Award suited him. And in the document that was prepared by Ms Angus it shows that under the Pastoral Industry Award overtime is all time in excess of 152 hours in any consecutive 4-week period. Much better suited to the enterprise for the reasons that we started with that we relied upon in relation to the nature of agriculture that were put in evidence by Mr Streets.

PN1244

We also say that the Pastoral Industry Award better meets the criteria set out in section 143(1)(b) of the Act. We have attached the hospitality decision in that regard because it defines "productivity" but also because there is a passage in the hospitality decision which is set out as attachment 18, your Honour, on page 4 of the Internet copy where, just before the heading (3) History of Existing Award Provisions, the Full Bench gives an example of how penalty rate premiums can be so high as to effectively preclude work on Sundays. It goes on to say:

PN1245

Such an outcome would prevent a 7-day shift operation which in some circumstances could be said to hinder productivity at particular enterprises and workplaces where the continuous operation of machinery is the most efficient method of operation.

PN1246

We say that Mr Streets' evidence clearly points to the fact that the hours clause in the Pastoral Industry Award is more appropriate for agriculture. It is in the nature of the sort of example that is eluded to by the bench in the hospitality case that shows why the Pastoral Industry Award is most appropriate for all of agriculture, partly because of the flexibility of hours, overtime kicks in after 152 hours in a 4-week period have been worked. And the evidence is over 70 per cent of those who breed and raise pigs are not covered by the Pig Breeding and Raising Award.

PN1247

So the arguments about common occupation and competencies within the majority of the industry that Ms Angus asked you to have mind to when you deal with this issue are irrelevant because the common occupation and competencies within the majority of the industry are exercised on mixed enterprises, are exercised in respect of those who are not totally engaged in piggeries.

PN1248

Proposition 13. I am reaching a conclusion, your Honour. The PIA, we say, is an award that satisfies all of the criteria and the objects of part VI of the Act. The Act requires that any award acts as a safety net for fair minimum wages and conditions of employment. That is section 88A(b). The words are not a fair safety net and hence a comparison of the terms and conditions of two awards with one being said to be more fair to an employee is not at issue. As long as there is a safety net which contains fair minimum wages and conditions of employment then part VI of the Act is satisfied.

PN1249

In all Sixth Gralloch's circumstances better suit the application of the Pastoral Industry Award over the Pig Breeding and Raising Award. We say that in our legal arguments and related to the evidence the Pastoral Industry Award covers all of the work undertaken by Sixth Gralloch's workers in agriculture. The Commission should exercise its discretion not to bring about the situation where two awards apply with the all the difficulties that that might bring. The Commission should exercise its discretion to maintain the Pastoral Industry Award in this place.

PN1250

The Commission should exercise its discretion because the union have shown no material, have shown no arguments which displace the fundamental proposition, the prima facie presumption of the maintenance of the terms and conditions and rates of pay that currently apply. We have also pointed to the weight that your Honour should give to the exercise of his discretion in relation to the most broadly available industry award and that clearly is the Pastoral Industry Award. We do say, your Honour, that the breadth of your discretion is wide, but that you should exercise your discretion in the manners that we have articulated and that the sort of clash that you are endeavouring to resolve in PR904326 should not be imposed upon Sixth Gralloch because that would raise more legal doubts than it would satisfy.

PN1251

The way in which we seek to clearly distinguish the judgment that you have reached on 18 May 2001 is by saying that you can exercise your discretion to ensure that the sort of clash and the problems that were exposed in Borgcraft do not apply at this workplace. If it please the Commission.

PN1252

THE SENIOR DEPUTY PRESIDENT: How much time would you need, Ms Angus?

PN1253

MS ANGUS: Your Honour, I would expect to take about half an hour, but I wonder if it might be convenient if we just have a five minute adjournment?

PN1254

THE SENIOR DEPUTY PRESIDENT: I was going to suggest we have a five minute adjournment.

PN1255

MR CALVER: Thank you, your Honour.

SHORT ADJOURNMENT [11.50am]

RESUMED [11.58am]

PN1256

THE SENIOR DEPUTY PRESIDENT: Yes, Ms Angus.

PN1257

MS ANGUS: Thank you, your Honour. Your Honour, we know that an application to rope an employer into an industry award is no longer granted automatically. The employer has a right to be heard about the particular merits of their case in each application and the discretion of the Commission is large in relation to the granting or otherwise of a union application to rope an employer in.

PN1258

We know that from the Bengali Mining Company case, the Full Bench decision that has been provided by Mr Calver and in that decision there are in fact three criteria that have been outlined by that Full Bench that were put - criteria developed by the Bench for circumstances where there is opposition about a roping in. If I might I will take everyone to that on page 8 of that decision and I have actually got my own printed out copy so I am not sure how the numbering of your paragraphs work there, your Honour, but I am going to read the paragraph that starts, "The repeal of section 94".

PN1259

THE SENIOR DEPUTY PRESIDENT: Yes, I have that.

PN1260

MS ANGUS: Are you with me there?

PN1261

THE SENIOR DEPUTY PRESIDENT: Yes, I have that.

PN1262

MS ANGUS: I will read it all out but it is the middle component that I am particularly concerned about:

PN1263

The repeal of section 94 of the Industrial Relations Act carried away much of the underpinning rationale from relatively ...(reads)... general industry award.

PN1264

And this is the key that I will return to:

PN1265

Considerations based on common occupations and competencies, business competition and common work value assessments are ...(reads)... are not so readily assimilable.

PN1266

Your Honour, I think it is possible to extract from those comments made by the Full Bench three criteria for consideration and they are, common occupations and competencies, business competition and common work value assessments, and they are the criteria that I want to briefly address in my submissions for reply. The first of those is the notion of common occupations and competencies. Now, your Honour, the primary submission that I put to you is that the application before you is to rope Sixth Gralloch Holdings into the Pig Breeding and Raising Award.

[12noon]

PN1267

There is no determination about the appropriateness or otherwise of the Pastoral Industry Award. The key matter for consideration here is the appropriateness of the Pig Breeding and Raising Award relative to the work undertaken and in that respect, the key question, then, is whether the occupations contained in the award and the occupations performed by the employees are common. That is that notion of common occupations and competencies and I think it is possible to say that it is not just an assertion of mine, it is not submissions, but in fact it has been established as a matter of fact that there is a piggery, that whatever the name attached to the people who work in that piggery, whether they are employees who work in a piggery, whether they are farm hands, station hands, piggery attendants, it has been agreed, it is an uncontested fact between the parties on the basis of Mr Smith's evidence that the duties contained in the Pig Breeding and Raising Award are a comprehensive and accurate description of the work undertaken by those employees.

PN1268

I think it is possible to say on the basis of an inspection that the work performed by those employees and the work described in the award that we put up before the Commission as the appropriate award are common and, indeed, there is no contest really about the fact that there is a piggery here. Mr Calver would have us believe that people were employed - when they first commenced employment, their contract of employment extended beyond the work undertaken in the piggery. That is that the contract of employment of these employees is not just pig work. That is not their entire contract. Your Honour, I think that we need to actually look at the reality of the situation here.

PN1269

The evidence that we have had before us is that there are employees who for their entire length of service at Sixth Gralloch Holdings have worked only in the piggery. They are not mixed function employees as outlined in the 1956 decision about the nature of station hands. They have for their entire length of service worked only entirely in the piggery and, your Honour, as a matter of justice, if you like, to these employees, it would be unfair in our submission to privilege, if you like, Mr Smith's desire in some hypothetical future to move these employees to perform other types of work outside of the piggery which is about the hypothetical future, to give that more weight than providing the proper terms and conditions to those employees at the moment who have always worked in that piggery.

PN1270

That should not be. The argument that the employer in these circumstances should have the right to extend their current contract of employment to work in other parts of the farm should not be the basis of an argument to deny those employees of superior conditions contained in the Pig Breeding Award, so the key point here, your Honour, is quite simply that the award description of competencies and occupations and the actual work undertaken by employees on the ground are common, quite a simple point.

PN1271

The second criteria that is outlined by the Full Bench is the issue of business competition and it has been established in evidence in these proceedings that this piggery operates in the largest five per cent bracket of the product market and it is currently competing with employers who are respondent to the Pig Breeding and Raising Award who provide their employees with award rates contained in that award. That provides Mr Smith, as director of this company, with an unfair advantage. There have been two arguments put forward by the NFF I suppose about this issue of business competition.

PN1272

The first is Mr Calver has made the comment that it is the evidence of Mr Streets that 70 per cent of employers who operate in the pig breeding and raising industry are in fact - well, covered by the Pastoral Industry Award was the comment that he made. That is not the evidence that was brought by Mr Streets. The evidence that was brought by Mr Streets was that 70 per cent of the industry is not covered by Federal regulation. The reason for that is that a substantial proportion of the industry is in fact regulated by State awards which provide for near identical terms and conditions to the Federal award and they are also superior to the Pastoral Industry Award.

PN1273

It is not a luxury that we have available to us in Victoria and the other reason why 70 per cent in Mr Streets evidence is not regulated by the Federal award is also that it would fall outside the scope of the clause because we know that the bulk of the industry actually runs very small piggeries. That is one of the arguments put by the NFF as to why they are not competing - arguably not competing in the same market and the other argument that was put up was that, if you like, there are two product markets here. There is piggeries that are solely dedicated - employers that are solely dedicated to the raising of pigs and then there is this mixed business.

PN1274

Again, that proposition doesn't hold because the evidence of Mr Streets as he went through the respondency list was that by his count and not knowing all of the respondents, was that there were seven of the 19 respondents who, in fact, were mixed businesses, that is that they generated part of their income from other sources, whether it be I think pearls, crops, cattle, abattoirs. There were a number of different cases that he outlined in his evidence. The key thing here, though, is that one of the largest piggeries in Australia is currently not respondent to the Federal Piggery Award and it means that they are competing with employers, with piggeries who are respondent to the Federal award or who are respondent to a State award which provides for pig industry standards, if you like.

PN1275

That provides an unfair advantage to this employer and it provides the capacity for that employer to compete in the industry on the basis of lower wages and conditions. The third criteria that has been outlined by the Full Bench is that of common work value assessments. Now, the evidence we heard from Mr Streets was that there had been extensive work undertaken and agreed to. It proceeded on a consensual basis between the unions and various employer representatives, but there had been extensive work developing a career progression in the pig industry classification structure.

PN1276

The competencies had been outlined in each level, training modules had been identified, the degree of supervision required at each level has been assessed and itemised and the purpose behind this is precisely in the evidence of Mr Streets, the purpose behind it is precisely about attracting skills to the industry, retaining and developing those skills. The work undertaken in relation to developing that classification structure, as I have pointed out, was done jointly between the parties. It was done with a specific industry in mind and with the intention to have Federal coverage.

PN1277

The principles behind the development of that classification structure, your Honour, are consistent with the work value principles of this Commission. That is that awards should contain classification structures that unpack the various skill components in a job, that assess the value of those skills relative to other skills undertaken in the Australian labour market and then properly remunerate employees at least at an award level according to the skill, responsibility and qualification and experience contained in the jobs that people undertake, so it is skill based, it is work value based assessment of work, rather than say market remuneration which arguably happens at agreement level.

PN1278

That work has been done. It took years in terms of the development of a specifically pig industry award classification structure. That work has been done. It is consistent with the principles of this Commission. It outlines a career path for employees who stay in that industry, to develop their skills, to develop their competencies, and to have some sort of future in the industry; and to deny employees access to that classification structure, that career progression, your Honour, does them harm.

PN1279

It means that they no longer have - they do not have the same access to training opportunities, they do not have - their remuneration is no longer matched to the value of their work, as defined within the pig industry, and it is - in our view it is something - well, it is certainly reiterated in the Full Bench decision, again at page 10. The Bench decides that the classifications:

PN1280

The identification of award classifications of that description and that emphasis may be a substantial in the exercise of discretion to make an award.

PN1281

So the union's interpretation of what the Full Bench had put forward as the criteria used to assess the appropriateness of granting a roping-in, in our submission, actually reinforce our claim that there is a classification structure in this award that is appropriate to a particular industry; to not endorse the union application would be to deny employees access to that classification structure and to the proper remuneration that flows from that.

PN1282

Your Honour, I started with the point that it is our argument that the only matter that needs to be determined in these proceedings is the merit or otherwise of the Pig Breeding Award, the Piggery Award, and that in a sense the company's respondency to the Pastoral Industry Award is incidental. The application that you have before you is to determine the appropriateness of the award that we have put up, that the union deems to be the appropriate award. And it is an assessment of that, a determination of that, that is the primary focus, in our submission, of these proceedings.

PN1283

If it is the case that you grant the application and that there are two awards that then exist, then certainly it would be the union's view, and, your Honour, your own view from the basis of the decision that you have handed down that, as a matter of law, both can apply, and that the higher terms and conditions would be the terms and conditions that would need to be extended to employees, and certainly it is the view of the union that where there is a case of terms and conditions contained in both of those awards that are of equal value but inconsistent, that is a matter to be resolved by agreement between the parties.

PN1284

Your Honour, I want to address the question - the issue that if your are inclined to see the existence - the employer's respondency to the Pastoral Industry Award as an argument to not grant the union's application, I want to address - there are three arguments that I want to put to you as to why that should not occur. Firstly, in terms of the appropriateness of the Pastoral Industry Award itself, Mr Calver has argued that the Pastoral Industry Award, and it is his expression, gazumps all others. And he makes that comment both legally that one can actually extend - override the other.

PN1285

And also I think there is normatively, purposively, that historically because of the expanded scope of the Pastoral Industry Award, it should prevail, because a general award should prevail over a specific award, presuming the argument. And he relies on - in terms of evidence, he relies on firstly the Ceres Cotton Case and secondly - amongst others, and secondly the history of the Pastoral Award itself. And I want to address both of those, your Honour. The Ceres Cotton case, I do not think quite provides the support to Mr Calver's argument that he has in fact put forward.

PN1286

It is in that decision, and I note that the - well, certainly the decision that Mr Calver circulated to me, and it may in fact be the same as the one to you, your Honour, there is a page missing, and that is page 22 in my copy. It is in fact paragraph 75 that I want to quote from. Deputy President - - -

PN1287

THE SENIOR DEPUTY PRESIDENT: I am sorry, I was looking at the wrong one.

PN1288

MR CALVER: We sent another copy of the Ceres Cotton case - - -

PN1289

MS ANGUS: I see.

PN1290

MR CALVER: - - - downloaded from the Internet. I provided Ms Angus with a copy of a decision that I had and an Internet copy which is complete is in the folder, your Honour.

PN1291

MS ANGUS: Yes, I do not think I brought mine, but that is all right.

PN1292

THE SENIOR DEPUTY PRESIDENT: Which paragraph did you want to refer to?

PN1293

MS ANGUS: Paragraph 75, your Honour. Deputy President Sanz in that decision actually found that there was a situation where both awards could legally and practically apply. They both, in terms of the classification structure, in terms of the scope of the award, and in terms of the historical expansion of the Pastoral Industry Award, he actually concludes that both could apply. And at paragraph 75 he then decides that there should be other prevailing factors that are taken into account.

PN1294

The two that I think on my reading of that decision, the two that ultimately sway the matter for the Deputy President are, firstly, that the farm, the partner in that instance, had actually been respondent to the award for 14 years since 1986, had a track record of not attempting to manipulate the award to provide award obligations to its employees, and had been following the terms and conditions of the Pastoral Industry Award for all those years.

PN1295

The second factor that his Honour used as the basis for his decision ultimately was also - and this is clear - that in fact it was a back pay claim. It was not a prospective, it wasn't a future claim or roping-in to determine what the base terms and conditions would be from that point onwards. He actually - in that decision he was of the view that it represent significant cost to the employer and what amounted to a retrospective penalty, if you like, to the respondent.

PN1296

The key point here, your Honour, is that there is a significant difference in the facts of this matter and the facts of the Ceres Cotton case. Overwhelming the respondency of 14 years for the partners in the Ceres Cotton compared to - in fact prior to the commencement of these proceedings, this employer being respondent to no award, and also the fact that it was a retrospective issue. What we are determining here is what is the appropriate base award from now on.

PN1297

But the second component that I want to address about the appropriateness of the Pastoral Industry Award: the history of that award is, as Mr Calver has outlined, the story of its expanded scope, and that is clear from the two decisions, the 1956 decision and the '67 decision which Mr Calver has handed up, and it is also clear - in fact it is clear from the summary contained in the Ceres Cotton case. But that story of expanded scope, your Honour, reflects the protective intent of the Commission, that is at each stage in the expansion of the scope of that award.

PN1298

The debate was actually about expanding the award into the unregulated, and it is fascinating to read those decisions because I think it says something about social notions at the time about what was appropriate to fall within the scope of industrial regulation and what should remain outside that scope. And that is why in those decisions, if you read those decisions, it talks about, for example, whether students or family members should fall within the scope of industrial regulation, whether domestic servants should, and it was found in '67 that they were, and there is a stomach-churning debate about whether full-blooded Aborigines should fall within the scope of industrial regulation or rather more appropriately should fall beyond the scope of what is appropriate to regulate within a Federal system, indeed within any system.

PN1299

The point that I am making here is that expansion of the Federal Pastoral Award is the tale about an expansion into the unregulated area. It is about the extension of the Commission's power to provide the protection of an award to the previously unregulated. And that is a very different purpose, and the purpose that the National Farmers Federation are trying to put in this case, and that is the attempt here, the argument being put by the Farmers Federation, is precisely about stretching the boundaries of the award, not into the unregulated but into neighbouring awards as a way of actually eroding the conditions of that industry.

PN1300

That, I put to your Honour, does not conform to the intent or the purpose that can be traced in the various decisions as to why the award was being extended in the first place. The argument being put by the Company and by the Farmers Federation in this instance is that the Pastoral Industry Award should carry on its historical extension in scope but as a way to actually erode the conditions in neighbouring sectors or industries or awards. In fact awards within the agricultural sector have, within their scope, delineated the boundaries of each of those awards within neighbouring awards. As Mr Calver has pointed out, in the Horticultural Industry Award at 6.3, which award applies has to be reached by agreement. In the absence of agreement - - -

PN1301

THE SENIOR DEPUTY PRESIDENT: What if agreement isn't reached, what happens?

PN1302

MS ANGUS: Arbitration - well, my argument, in the absence of agreement it would need to actually be determined, and then if it couldn't be agreed, then it would have to go on the merits of each case.

PN1303

THE SENIOR DEPUTY PRESIDENT: It is a peculiar provision, that. What happens - the two questions I have in relation to that provision would be: what happens pending agreement, which award applies, or do both? What happens if there is no agreement, which award applies, or do both? And is it only if there is agreement that one or other of the awards applies? That is actually three questions I pose there. When you say it delineates the coverage of the award, it seems to recognise that the award doesn't exclude the Pastoral Industry Award, and which one is to apply is a matter for agreement.

PN1304

MS ANGUS: Well, I mean I think you need to look at the other aspects of the scope clause, the nature of the particular work being undertaken to work out which is more appropriate. I think it could be read from Deputy President Sanz's decision that, at least in his mind, the default award would be the Pastoral Award, and then in the absence of express agreement that that award would apply. I make no comment about whether that is correct or otherwise; I have no considered response to that.

PN1305

But the key point is within the scope of the award clauses in those two awards, there is an attempt to delineate or at least to provide a process for then the parties to delineate. And that is not the only award, the other neighbouring award is the Wine Industry Award which in Victoria in its scope clause says that it will only apply in the case of an employer producing more than 500 tonnes of wine a year which - - -

PN1306

MR CALVER: If it please the Commissioner, if Ms Angus is going to rely on that provision, my memory of it is it is far more embracing than that, and the specifics of it are quite important. And if she intends to rely upon it, I would ask her to produce it to the Commission. If it please the Commission.

PN1307

MS ANGUS: Well I can forward a copy of that award; I don't have it to hand.

PN1308

THE SENIOR DEPUTY PRESIDENT: Well, it is obviously available to the Commission if the Commission wants to look at it.

PN1309

MS ANGUS: That is right. But the union would argue - it is our argument that implicit in that notion in the Wine Industry Award, that delineation, implicit in that is a notion of the Wine Industry Award is appropriate to an established or reasonably established winery. Likewise implicit in the notion of the scope clause of the Piggery Award is that the Piggery Award is appropriate to a reasonably established piggery, that is one where people are employed in a full-time - well, where a person is employed in a full-time capacity and where there are employees who only do that work.

PN1310

So actually, in our argument, within the scope of the various neighbouring awards the issue of the boundaries between them is in fact resolved. For the Farmers Federation to argue that the Pastoral Award has the capacity to cover all agricultural work is to extend the scope of that award, the boundaries of that award, beyond - certainly beyond the pattern in the broad agricultural industry or sectors, but also to piggy-back, if you like, on an expansion in the scope of that award that has occurred historically and for protective reasons. It is being put to a different use here, I would argue, your Honour.

PN1311

There are two other reasons I want to briefly touch on as to why it is not appropriate, in our submission, for you to accept that the Company's respondency to the Pastoral Industry Award is a sufficient basis for their not to be respondent to the Pig Breeding Award, and that is that to do so would actually legitimise the employer's, in this instance, deliberate attempt to become respondent to the Pastoral Industry Award after the commencement of these proceedings, after the union actually served a log on the Company, and in becoming respondent to what is - let us be frank - an inferior award, it would then be using that as the basis for an argument as to why it should not provide the superior conditions of the Pig Breeding Award.

PN1312

Now that is obviously a legitimate, understandable, industry strategy on behalf of the Company and on behalf of the National Farmers Federation, but it represents an over-stretch of the capacity of that award. And it also, in my submission, represents a way of avoiding providing the terms and conditions that are appropriate to the industry where those employees work. And that is the final reason, your Honour, why the respondency to the Pastoral Industry Award should not be used as a way to avoid respondency to the Pig Breeding Award, and that is that it would do harm to those employees who work in that piggery.

PN1313

It would mean that those employees miss out on the superior conditions contained in the Pig Breeding and Raising Award. And, your Honour, we are not talking about off-shore oil workers here. These are people who are paid only marginally above the Federal minimum wage, and if those employees are provided with the terms of the Pastoral Industry Award only, then a full-time employee who has been there 2 years would be paid almost 10 per cent less. A casual employee in that same classification would receive more than 20 per cent less under the Pastoral Award.

PN1314

They would not have access to a career path, they would not have access to training opportunities, they clearly would not be remunerated, in our submission for the actual value of the work they undertake. Aside from the inferior leave conditions, they would over-all be receiving terms and conditions - no, they would not be receiving, they would be denied the terms and conditions available to employees who work for the competitors.

[12.30pm]

PN1315

So for those three reasons, your Honour, we say it is not sufficient, the employer's respondency to the Pastoral Industry Award is not a sufficient basis for an argument that they should not be respondent to the Pig Breeding Award. I might just make one quick point about the issue of the first award principles. It is the union's submission that, in fact, those first award principles don't apply in this case in quite the way that Mr Calver has put forward. First award principles, I would argue, apply in the context of the creation of an award from scratch, where there has been no award in the past and the application by the union is to create a new award.

PN1316

Or they apply in the context of an award, a change in the award that extends the award beyond its traditional scope, or in the context where there is a variation in that award, a variation in the safety net because of a changed industrial context within which the award is operating, and that is the case of the Edith Cowan University case. The Pig Breeding Award was created in '94. It has passed the first award principles. I note also that - well, the first point that I make, your Honour, is that those principles do not apply in this circumstance, or at least if they do, then they apply - then the creation of a roping-in award is merely replicating the safety net contained in the Pig Breeding Award and, therefore, it has already been - it has already passed those principles.

PN1317

If you are not with me on that, your Honour, and I need to make out a case for the first award principles being met, then I would simply make the point that, in fact, Mr Calver has argued that the primary consideration should be the existing rates and conditions. That has been changed. That was replaced, I think, in the '93 National Wage Case and it has been replaced with the existing principles at, I think, principle 11 which are that the appropriate standards in the same or reasonably comparable industries should apply.

PN1318

Well, yes, I see you moving your brow there, in fact, that is a decision in the Edith Cowan case which is attachment 3. If I could take your Honour to page 8 of that. Page 6 I note in passing is the new principles, the first award principles, and the principle to which Mr Calver has referred - that is, that there should be primary - the main consideration should be the existing rates and conditions, has been replaced by those new principles. I note that because - well, I just note that for the record. But in the Edith Cowan case there were on page 8 two matters that were also considered that I would argue actually provide further support to our application. And they are outlined in the form of a question, two questions and I am reading here:

PN1319

Two serious issues going to the merits remain for consideration. (1) Does the proposed long service provision -

PN1320

and I am going to paraphrase, if I may, your Honour:

PN1321

Does the proposed application approximate standards set by Federal Awards applying in the same or reasonable comparable industries.

PN1322

And secondly:

PN1323

Should a change occur which would create a difference between classes of employees within the same enterprise where none currently exists at the moment.

PN1324

Now, in terms of the first one, I would simply say again - and it has been, I think I have argued before in enough detail - that it is certainly the basis of our argument that our application provides for approximate standards which apply in the same or reasonably comparable industry, being the Pig Breeding Award. That is the nature of our application here. And secondly, I note just for the interest of all involved that the question - the second question which was raised was does it matter, in a sense, that the application that the creating of a new safety net would have the consequence of creating two types of - two classes of employees in the same workplace. Well, that is matter that actually may occur if this roping-in is granted. It was not a - it was resolved by this Full Bench and accepted on page 11, the Bench had the following comments to make:

PN1325

We accept that a difference may exist between academic and general staff at Edith Cowan University. However, this decision cannot be used in isolation to justify a change to overcome that difference.It may or may not be anomalous that general staff have different conditions within an enterprise from academic staff.

PN1326

The theme is transferable and that is it is possible that two classes of employees may actually have a different safety net at the same enterprise and that that should not be used to - well, in terms of this case that was not a factor to oppose, to reject the variation of that safety net. And that is a theme that has application here. So your Honour, by way of conclusion, the submission we put to you is that the primary, indeed, the only matter to be determined here, is the appropriateness of the Pig Breeding and Raising Award to the type of work conducted at that enterprise in the piggery. It is of, in a sense, it is of little consequence that the employer is also respondent to the Pastoral Industry Award.

PN1327

If there is any overlap, then it is our submission that the higher of the two sets of conditions should prevail and that has been outlined in your decision in the Food Preservers matter. The existence of the Pastoral Industry Award should not be used as a basis for an argument that the superior conditions contained in the Pig Breeding Award should not apply. There are two reasons for that. Historically, the expansion of that Pastoral Industry Award in the union's view, in the union's submission was precisely about expanding industrial protection and industrial coverage to the unregulated to those two Aborigines, domestic servants, who fell traditionally outside of the scope of industrial regulation.

PN1328

It was not - in its intention it was not about reducing the terms and conditions in a neighbouring industry, which is the nature of the opposition by the National Farmers Federation. To reject the union's application with a view that the Pastoral Industry should apply is to, in fact, deny those employees who work in that piggery access to the superior conditions contained in the industry award that the competitors are receiving. It is, in our submission, the appropriate award. I have outlined that argument on the basis of the three criteria developed by the Full Bench.

PN1329

That is, it provides - it outlines occupation and competencies which are common to the occupation and competencies performed by the employees themselves. It is the award that applies in the case of a number of competitors or at least the state award which provides equal terms and conditions extends to those competitors as well. So it is the instrument that regulates that industry. And finally in terms of the criteria developed by the Commission by the Full Bench, the work value - the work that has been done in that classification structure which identifies the value of the work undertaken is of benefit to the industry, it is of benefit to the efficient performance of that work and it is of benefit to the employees. To deny them access to that classification structure would do them harm, in the union's submission, and it would be unfair.

PN1330

It is on the basis of those arguments, combined with the earlier submissions that I put, your Honour, that awards themselves - that the safety net itself should function. According to the Objects of the Act at section 88, the safety net should be fair, it should be simplified, it should be suited - and it should be a suitable minimum set of conditions from which to benchmark enterprise agreements. It is for all those reasons, your Honour, that we are seeking this application. And we seek that Sixth Gralloch Holdings be roped-in to the Pig Breeding and Raising Award 1999 with an award to be issued in due course. They are our submissions. If it please your Honour.

PN1331

THE SENIOR DEPUTY PRESIDENT: Thank you, Ms Angus. Did you have something you wanted to raise?

PN1332

MR CALVER: Did you wish us to answer the questions that you proposed, your Honour?

PN1333

THE SENIOR DEPUTY PRESIDENT: Well, I would - - -

PN1334

MR CALVER: The questions that - - -

PN1335

THE SENIOR DEPUTY PRESIDENT: Yes, I would be interested in what your view is as to - you take the Horticultural Industry Award, what is the position if not agreement is reached? What is the position pending agreement being reached?

PN1336

MR CALVER: Yes. I took the Commission to that shortly, but I will give you our answer in detail, because it says:

PN1337

Where an employer bound to this award is also bound by the Pastoral Industry Award agreement will be reached with employees.

PN1338

Not as to which award will apply, not the previous words that were put forward to DP Sanz, but as to whether this award is to apply, as to whether this award is to apply. Therefore, on the basis of it being postulated, whether this award will apply. We apprehend that the Pastoral Industry Award is currently at the point upon becoming bound to this award, the Pastoral Industry Award is an extant award which applies.

PN1339

THE SENIOR DEPUTY PRESIDENT: The implication at least - at least it is an implication in your submission, is it, that the Pastoral Industry Award applies. Unless there is agreement to the contrary - - -

PN1340

MR CALVER: Indeed.

PN1341

THE SENIOR DEPUTY PRESIDENT: - - - that this award applies.

PN1342

MR CALVER: Indeed. And we say that because the words, `whether this award is to apply' the phrase `whether this award is to apply' is not expressed as which award shall apply, then in the absence of agreement the Pastoral Industry Award gazumps `and applies' and that is one of the reasons we drew the Bench's attention to the matter. I should also note that Ms Angus surprised us completely in relation to the reference to the Wine Industry Award, but we don't take anything from that. If it please the Commission, unless you have any further questions, your Honour.

PN1343

THE SENIOR DEPUTY PRESIDENT: No, I don't.

PN1344

MR CALVER: Thank you.

PN1345

THE SENIOR DEPUTY PRESIDENT: Thank you. Thank you for your assistance in this matter. The Commission will reserve its decision and will issue a decision as soon as it can in relation to the matter before it. The matter is adjourned on that basis and the Commission itself is adjourned.

ADJOURNED INDEFINITELY [12.45pm]