AG2001/4043, Transcript of Proceedings [2001] AIRCTrans 2238 (4 September 2001)

AUSCRIPT PTY LTD
ABN 76 082 664 220

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TRANSCRIPT OF PROCEEDINGS


O/N 8968

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT KAUFMAN

AG2001/4043

APPLICATION FOR AGREEMENT WITH
EMPLOYEES (DIVISION 2)

Application under section 170LK of the
Act by Ballarat Regional Industries Inc
for certification of the Ballarat Regional
Industries Enterprise Agreement, 2001

MELBOURNE

9.33 AM, FRIDAY, 17 AUGUST 2001

PN1

MR M.J. MALONEY: I appear for Ballarat Regional Industries.

PN2

THE SENIOR DEPUTY PRESIDENT: Yes, Mr Maloney?

PN3

MR MALONEY: Thank you, your Honour.

PN4

THE SENIOR DEPUTY PRESIDENT: There is no employee representatives?

PN5

MR MALONEY: No, I was just going to mention, your Honour, that the employees were advised of their right to attend, but they declined to make use of it, so I am the only appearance, your Honour.

PN6

THE SENIOR DEPUTY PRESIDENT: Okay, well we will see how we go.

PN7

MR MALONEY: Thank you, your Honour. Some introductory remarks first if I could, to set the scene, because this is a fairly unique type of area we are dealing with. The disabilities sector consists of three parts, there is the residential services sector, the day services sector and the employment services sector. And it is only in relation to the latter, the employment services sector, that we are involved with in this application.

PN8

Now, the employment services sector consists of three parts. At one end we have open employment for people with a disability, which might be working in Coles Myer or Target store or a cleaner in this office building, for example.

PN9

THE SENIOR DEPUTY PRESIDENT: Yes.

PN10

MR MALONEY: We also have what we call section 10 establishments and I will refer to them as traditional section 10 establishments. And they are places which try to mirror the workplace to a greater extent, and I will come back to that at a later point. And the third group is what we call section 12s and 13s. The application we are dealing with today is a section 13.

PN11

THE SENIOR DEPUTY PRESIDENT: Isn't Melton a section 10?

PN12

MR MALONEY: Yes, with, and I should add at that point, there has been a policy decision of the Department, that all new supported businesses are deemed to be section 10. So Melton has come on stream and comes on stream as a section 10, otherwise it would have been a section 13, so there is a little bit of a quirk there.

PN13

THE SENIOR DEPUTY PRESIDENT: Is that because the disabilities of the people concerned are similar at Melton as of the other area?

PN14

MR MALONEY: No, no. Regardless of the level of disability, the Department's view now is, everyone should be looking at being a section 10, so as I say, all the new places are section 10 and government policy is that section 12s and 13s should try and be section 10s. Now in the XF application I will look at that in some more detail. Now, for the moment though, the point I would make is that section 10s, traditional section 10s and open employment areas, they have been involved in the establishment of awards and enterprise agreements over a period of time.

PN15

However, section 12s and 13s have only recently entered the industrial relations system. And that arises out of the Department's, that is the Department of Family and Community Services' policy position, that they should move into mainstream - not only do they become section 10s, but also they should pick up the overriding philosophy that people should have rates of pay and conditions prescribed by some sort of machinery such as an award or enterprise agreement.

PN16

Now there are several hundred of these places around the country.

PN17

THE SENIOR DEPUTY PRESIDENT: Section 12 and 13 places?

PN18

MR MALONEY: Yes, your Honour, and to date, only a handful have presented here for certification.

PN19

THE SENIOR DEPUTY PRESIDENT: I am aware of three that you referred to in the - - -

PN20

MR MALONEY: Yes, three there, there is probably about 10 that I am aware of, there may be others. But I think that most of the others that have done may be up the coast of New South Wales and Queensland, are in fact section 10 providers, so they would be moving in a different type of system. Returning to this application, as you quite rightfully picked up, your Honour, Ballarat is a section 13 and Melton is a section 10.

PN21

THE SENIOR DEPUTY PRESIDENT: Can you just briefly describe Ballarat and Melton for me, what they do there, the number of employees, the size of it and so on.

PN22

MR MALONEY: Yes. Ballarat has been around for probably about 15 years now, it is quite a large organisation, has some I think around about 80 employees, it is to packaging, assembly, that type of stuff. It is very much a - well it is a very well respected provider amongst section 13 providers. Melton came on stream after we started the process in Ballarat and in fact only opened this year, around about March this year. Now, one of the difficulties we had with Melton, is when a service opens up for the first time, or naturally you have made application to the federal government for funding and there would have been a series of proposals in that.

PN23

But you don't actually know until the day you open up, what sort of people you will have, what level of disability people with have and how you are going to marry that up with what contract work you can get. It is a very big unknown. Our first thought was that maybe we should leave Melton out of it until such time as we further down the track.

PN24

THE SENIOR DEPUTY PRESIDENT: The thought did go through my mind.

PN25

MR MALONEY: Yes.

PN26

THE SENIOR DEPUTY PRESIDENT: How many employees at Melton.

PN27

MR MALONEY: I think we are probably running at about 10 now. But then we thought that - even though the philosophy that has driven all this is a philosophical view from the Department. There is also, probably a stronger philosophy which is everyone is entitled - every worker is entitled to a set of rates and pay and conditions that are legally enforceable. So we thought, well, let us incorporate them and make it abundantly clear and transparent that the reason why the Melton rates and conditions would seem to be lower is because we are still in the process of setting it up.

PN28

But what we have done - or should I say what Ballarat Regional Industries has done, is given itself the challenge because you will notice in the documentation that the expiry date is in fact December this year.

PN29

THE SENIOR DEPUTY PRESIDENT: Yes.

PN30

MR MALONEY: And it is by that date they expect to have Melton up to scratch. And the proposal - the thoughtline at the moment is that by early next year there will be an application coming back to this Commission which will make no reference to differences between the two sites. That is the position we have come in with and it is a very transparent position both here today to you and within the document. Again, before going to the XF application I would just like to say a couple of things about how these agreements are put together.

PN31

THE SENIOR DEPUTY PRESIDENT: Before you do that could you indicate to me the nature and level of the disability of the people involved?

PN32

MR MALONEY: It - the level of disability - I should say something before that, your Honour. Even though there is a suggestion in the way I presented this, that you have got section 12s and 13s, section 10s and then open employment - people move through it. That is rarely the case. If you are in a section 12 or 13 most likely that is where you will stay. Traditional section 10 that is where you will stay and whilst there - maybe a little bit of movement from section 10 out, it often comes back again.

PN33

And I will explain why that is the case. So section 12s and 13s have a much higher level of disability.

PN34

THE SENIOR DEPUTY PRESIDENT: Physical or mental disabilities?

PN35

MR MALONEY: Both. And you also see with Ballarat Regional Industries we have made provision for the futures program. Now, what that is - - -

PN36

THE SENIOR DEPUTY PRESIDENT: Yes, I am not familiar with it.

PN37

MR MALONEY: Yes, special schools. There are special schools that are in operation for people with a disability and what had been found was that when people left school there was nowhere to go. So this provides special schools with a link - the first link to the workplace and there is separate funding made available for that.

PN38

THE SENIOR DEPUTY PRESIDENT: Yes.

PN39

MR MALONEY: So that is what that is about. In the construction of this agreement, indeed, in the construction of all the enterprise agreements I do in this sector, the following is how they are put together. Step one is we capture existing arrangements. We take a snapshot of what is happening. We then improve that where we can and we tag things as being improved. We record those in plain English and we work on 100 per cent transparency in what we do. We believe the result of that approach is a document which has a low level of complexity and a high level of capability to be understood by the employees involved.

PN40

Having said that, your Honour - I digress now, the XF application - they tend to run together these matters.

PN41

THE SENIOR DEPUTY PRESIDENT: Yes.

PN42

MR MALONEY: As I have said there are these three levels, if you like, of employment. Open employment, traditional section 10s, section 12s and 13s. As we go from section 12 or 13 along the continuum to open employment, things happen. Support needs drop. They are high in section 12s and 13s, lower in open employment. The complexity of the work increases. The number of employees without disability increases.

PN43

THE SENIOR DEPUTY PRESIDENT: So not all the employees have a disability?

PN44

MR MALONEY: In a section 12 or 13 you would find, in most cases, all the employees have a disability apart from, obviously, the support workers.

PN45

THE SENIOR DEPUTY PRESIDENT: Yes.

PN46

MR MALONEY: Section 10s you will have, maybe, a 50/50 ratio.

PN47

THE SENIOR DEPUTY PRESIDENT: And why are the people without a disability employed in section 10 establishments?

PN48

MR MALONEY: Again, apart from the support workers, the nature - - -

PN49

THE SENIOR DEPUTY PRESIDENT: Yes, I have only just - - -

PN50

MR MALONEY: - - - of the contract - indeed, some section 12s and 13s, from time to time in Ballarat Regional Industries as one, will use people without a disability so they can get the contract done. Will it be on time, or it maybe that there are several component parts to the process on a series of tables and they need one person on each table - - -

PN51

THE SENIOR DEPUTY PRESIDENT: Right.

PN52

MR MALONEY: - - - that can do a part of it which they can't do. That sort of thing.

PN53

THE SENIOR DEPUTY PRESIDENT: Yes, thank you. But this agreement would not apply to people without a disability?

PN54

MR MALONEY: No, no, no. And I will digress a second there, your Honour, quite purposely, we do not include people without a disability because once you do that your focus changes.

PN55

THE SENIOR DEPUTY PRESIDENT: Yes.

PN56

MR MALONEY: And other things happen.

PN57

THE SENIOR DEPUTY PRESIDENT: Well, an agreement such as this would not be appropriate for people without a disability.

PN58

MR MALONEY: Totally inappropriate. Again, the profit motive increases as you go to section 10 open employment and probably - - -

PN59

THE SENIOR DEPUTY PRESIDENT: The employer is a non profit organisation, as I understand it.

PN60

MR MALONEY: Yes, not for a profit organisation but you try to balance the books.

PN61

THE SENIOR DEPUTY PRESIDENT: Yes.

PN62

MR MALONEY: The chances of balancing the books at this end is much lower than at that end.

PN63

THE SENIOR DEPUTY PRESIDENT: Yes.

PN64

MR MALONEY: And probably, more importantly, or most importantly of all, is the concept of duality.

PN65

THE SENIOR DEPUTY PRESIDENT: You need to spell that out for me.

PN66

MR MALONEY: It is d-u-a-l-i-t-y, duality.

PN67

THE SENIOR DEPUTY PRESIDENT: Yes, but I don't know what you mean by it.

PN68

MR MALONEY: Yes, I will explain that now. In a section 12 or 13 the main relationship between the employer, if you like, and the employees with a disability is one of care and training. The employment relationship is superimposed on top of that. Section 10s and open employment that reduces considerably. So we often talk about the duality in section 12s and 13s decreasing as you got on the continuum. Now, I mentioned before traditional section 10s have used awards and the award they generally use is the Australian Liquor Hospitality and Miscellaneous Workers Union Supported Employment (Business Enterprises) Award 1993.

PN69

THE SENIOR DEPUTY PRESIDENT: Yes, I tried to understand that this morning but without much success, I must say.

PN70

MR MALONEY: Well, my thoughts as well, your Honour.

PN71

THE SENIOR DEPUTY PRESIDENT: It hasn't been simplified, I take it?

PN72

MR MALONEY: No, as far as I know, it hasn't. It does lend itself to some observations about why it is - at all exists in this sector. But, nevertheless, in the past it has been put up as the Holy Grail for the sector and quite a few section 10s have used it or are either parties to it, or more recently, are using it as a basis for enterprise agreement. Now, I for one, find it a very difficult document. There is very little in it which can be said to be dedicated to the needs of people with a disability. In many ways it is sort of the lowest common denominator approach. There is no rates of pay in it and it is remote from the workplace.

PN73

THE SENIOR DEPUTY PRESIDENT: In what sense, Mr Maloney?

PN74

MR MALONEY: Well, we have a supported wage system but no rates of pay. We have a number of provisions in here which there would be no chance of a person with a disability understanding. I refer, for example, accident pay. The parental leave provisions; the employees would have no show of understanding. Even though I am no expert, your Honour, in relation to people with a disability, I suggest that even looking at this document would be a turnoff for them. It is just not appropriate for this sector.

PN75

Indeed, as I understand, the Coffs Harbour decision by her Honour Justice Drake, there was a concern in that that the proposal in Coffs Harbour, which I understand it was based on this document, was just impossible to understand.

PN76

THE SENIOR DEPUTY PRESIDENT: Sorry, when you say the proposal in Coffs Harbour was based on this document. You mean the award, do you?

PN77

MR MALONEY: Yes. It is quite common in this sector for employers to be advised to use this document as their starting point and make changes to it.

PN78

THE SENIOR DEPUTY PRESIDENT: Yes. I did obtain a copy of the Roytal Enterprise Supported Employee Agreement that was certified by Senior Deputy President Drake. It has much more similarity to your proposed certified agreement than to the award, I must say.

PN79

MR MALONEY: Yes, your Honour and there is a great deal of shared management between Roytal and Ballarat Regional Industries and that accounts for quite a few of the similarities. But the process I use in all these is the same. The content will differ but the process is the same.

PN80

THE SENIOR DEPUTY PRESIDENT: Were you involved in the Roytal certification?

PN81

MR MALONEY: Yes, your Honour.

PN82

THE SENIOR DEPUTY PRESIDENT: Yes.

PN83

MR MALONEY: The point I make, your Honour, is that I believe that what we are proposing - and I will come to it, obviously - our document, shortly - - -

PN84

THE SENIOR DEPUTY PRESIDENT: Yes.

PN85

MR MALONEY: - - - is of more value to the employees than anything like that. The reason I have actually made a point of it in the XF application because in the decision of Justice Drake she never required me to actually go to this point is because there are some people in the Department who still hold that document up as the Holy Grail.

PN86

THE SENIOR DEPUTY PRESIDENT: The aware up as a Holy - - -

PN87

MR MALONEY: Yes. And the people - the terminology that has drifted out there into supported employment land is you have got to have award base rates of pay. And the people hold this up. Well, this is the relevant award therefore why don't we have an enterprise agreement based on that. And I say to them, well, it is just too complex. So - - -

PN88

THE SENIOR DEPUTY PRESIDENT: And it doesn't have wage rates.

PN89

MR MALONEY: Yes. Yes, well, there is a number of shortcomings, your Honour. Anyway, the point I make, just to bring that together, is I believe our proposal, once you see it, is better than what is contained in that document.

PN90

THE SENIOR DEPUTY PRESIDENT: Is it your primary submission that I shouldn't designate an award? That I should follow Boulton J and Senior Deputy President Drake?

PN91

MR MALONEY: I suppose I am in your hands. Ideally, I suppose, the best outcome I can get is that you are moved that the award I refer to is designated but the proposal in front of you offers no better outcome.

PN92

THE SENIOR DEPUTY PRESIDENT: Why do you want me to designate that award rather than follow the course that their Honours followed in the other set of - - -

PN93

MR MALONEY: Your Honour, as I say, we have this difficulty in the field from the Department's point of view.

PN94

THE SENIOR DEPUTY PRESIDENT: Well, the Department is not here, Mr Maloney.

PN95

MR MALONEY: I know, the trouble is - if we were able to deal with them.

PN96

THE SENIOR DEPUTY PRESIDENT: They are not making submissions and - - -

PN97

MR MALONEY: Yes, yes.

PN98

THE SENIOR DEPUTY PRESIDENT: - - - and I am not concerned quite frankly with the Department's view unless the Department seeks leave to intervene and is granted leave and makes submissions. I am concerned with whether or not I should certify this agreement and whether I should certify it against an award that I designate being an award that you say to me is quite inappropriate.

PN99

MR MALONEY: Yes, well, that is the dilemma, your Honour. I am putting up to you an inappropriate award.

PN100

THE SENIOR DEPUTY PRESIDENT: Well, let me quite open with you, Mr Maloney. Were it not for the fact that Melton is a section 10 establishment I would have no hesitation in following the course that was adopted by Boulton J in the - in certifying the Warrinyan Incorporated Enterprise Agreement 2000 and the Woolhara Australia Limited Enterprise Agreement 2000 and Senior Deputy President Drake in the Roytal Enterprise Supported Employee Agreement 2001. My hesitation arises because Melton is a section 10 establishment - but you have explained to me why Melton is a section 10 establishment - and it would appear, if I understand your submissions correctly, that for all practical intents and purposes, there is no difference between Melton and Ballarat.

PN101

MR MALONEY: Yes, your Honour.

PN102

THE SENIOR DEPUTY PRESIDENT: Yes. I am not inclined to designate an award.

PN103

MR MALONEY: Thank you, your Honour. If I can take you to the enterprise agreement - - -

PN104

THE SENIOR DEPUTY PRESIDENT: I, again, can indicate to you that I have read the statutory declarations of Rex Carland who is the chief executive officer of Ballarat Regional Industries Incorporated and I have also read the affidavits of the - the statutory declarations, rather, of the employee representatives, namely, Rex Anderson, Mark Vervoot - V-e-r-v-o-o-t and Janie-Maree - J-a-n-i-e - M-a-r-e-e Donelly and I have had a fairly close look at the proposed certified agreement. Perhaps to indicate to you what I am interested in hearing about is how I can be satisfied, without hearing from the employee representatives or without adopting the course that I understand Senior Deputy President Drake adopted, of going out to the establishment concerned, how I can be satisfied that the employees genuinely approve the agreement.

PN105

I note that each statutory declaration is in identical terms and that immediately raises question marks about the understanding of the people who made the statutory declaration in the circumstances. And, indeed, about how I can be satisfied that the they were truly representative and that the people whom they represented also understood what the agreement was about and genuinely approved it. They are the matters that I am particularly interested in as well as the merits of the actual certified agreement.

PN106

MR MALONEY: Yes, your Honour. Well, maybe, your Honour, if I go to the certified agreement first - - -

PN107

THE SENIOR DEPUTY PRESIDENT: Yes.

PN108

MR MALONEY: - - - and just talk about some of the - what I consider to be the merit matters. In clause 2 we have a preamble so it is show-all, what we are trying to do. Clause 5 I have mentioned before, term of the agreement. There is a commitment there in relation to Melton. Clause 7, terms of employment. We see those transitional arrangements made quite clear in relation to the terms of employment. Again, hours of work, the next clause. We can see what the differences are. And can I say that is what is happening at those work places.

PN109

That is why I am in a position to be able to say to your Honour that we have taken what actually happens there, put it in plain English, and as I go through the document I will point out places where things have changed, and so these have changed in a very positive way.

PN110

THE SENIOR DEPUTY PRESIDENT: Do you say to me nothing has changed in a negative way?

PN111

MR MALONEY: Nothing at all in a negative way. The rates of pay. Again, we have different arrangements for Ballarat and Melton. The rates of pay there and how they are put together are very much how it happens. What we have added is a regime that ties those rates in to movements in the minimum adult rate as set by the Industrial Relations Commission. Now, that is new but it is positive.

[10.00am]

PN112

Over the page, we capture all the existing arrangements in relation to overtime, protective clothing, etcetera. Clause 15, annual leave: they have what is called a September week, an extra week; we capture that. Clause 16, sick, family and compassionate leave; now the quantum of days in here hasn't changed, but they weren't in a way that I believe we should have them, so I have adopted a contemporary way of showing sick, family and compassionate leave.

PN113

THE SENIOR DEPUTY PRESIDENT: I didn't check that this morning. Is that conformable with the Commission's standard for leave of that nature?

PN114

MR MALONEY: Yes, I think it is actually in excess, your Honour.

PN115

THE SENIOR DEPUTY PRESIDENT: Yes. I just don't have it off the top of my head.

PN116

MR MALONEY: Clause 17, parental leave: now you will notice, your Honour, we don't put the parental leave provision in there. We make reference to it, but we turn the obligation around. It is not the employee's obligation to let the employer know if they are pregnant; it is the employer's obligation to make sure he or she knows what is happening in that workplace, so they could take them through various steps.

PN117

Long service leave, clause 18, the last paragraph is new. We capture the existing arrangements, then we give people the alternative to be able to cash out their entitlements. Now the reason for that is people may not want to take their long service leave, they have nothing to go to. Their work is their work. Other employers can say to an employee: you shall take your long service leave tomorrow for the next 6 months, or whatever. You can't do that in this business. It is those sort of boutique considerations you will find right through this document.

PN118

Over the page, disputes and complaints. We don't actually spell out anything here. We invoke the Disability Services Standards Handbook, which each centre has. We don't put it in there because there is a lot of cartoons and things, that is the way it is relayed to the employees. But what we do do - - -

PN119

HIS HONOUR: Often it is said that reference to a handbook that can be changed from time to time is unacceptable in a certified agreement because the Commission is endorsing something that the employer can alter. Now, how do you respond to that?

PN120

MR MALONEY: Yes. But the handbook is actually drawn from another piece of legislation. It is a requirement under the Disability Services Act that you will have a handbook that deals with these things, and it must always be complying, and it may well change, depending on changes made under that legislation. But what we do here - in any other workplace, if there is a dispute, either the employer can take it to the Commission or the employee, or the union to the Commission.

PN121

Now that would be unreasonable to say that the employee would have to do that. So the obligation is on the employer. So if something does happen - and we don't know whether it is even possible - but the employee can request the employer to put things in motion for hearing in the Commission. Accident pay, clause 22. We have cut that back dramatically, but what we have done here which is important is there is no waiting period. If there is an accident on the job, then the employee is covered by accident pay from day 1.

PN122

Now, it is things like that, your Honour, as I say, that are right through this document, and I can assure the Commission that what I have said we have done we have done. That is we have taken the snapshot, improved it, a plain English approach. That is reflected in the statutory declarations. I take your point on board, but I am moved to be driven here by her Honour Drake Js approach, which is: is the document capable of being understood? And I say yes. Is the document capable of being conveyed to the employees? So there are two parts, one is a document, the other one is conveying to your target group.

PN123

One of the things that came out of Coffs Harbour was an employer may well be going down the wrong track if they bring into the workplace a group of trainers to train employees as to what a document means. We stay clear of that. The way we process these is we tap into their existing ways of processing information, and we put in the obvious points out of the act, like the 14 days, those sort of considerations. But we stick to: however, the workplace sorts out issues. And we believe that allows employees to have a much greater understanding of what the document is all about.

PN124

So if her Honour Drake Js approach in Coffs Harbour is to be the way things are handled, I believe we have done that to the last point. Now, I don't know, your Honour, whether there is anything else I can say in relation to whether these people understood the document other than to say that it was not a complex document. It is one that is easy to convey to the employees.

PN125

THE SENIOR DEPUTY PRESIDENT: Can I take you to clause 5.1 of the statutory declarations where the process is explained and ask you just to flesh that out a little for me? For instance, what format did the discussion between Mr Carland and the employees take on 17 May?

PN126

MR MALONEY: Well, your Honour, I wasn't present on that day. Could I say to the Commission that the employer was told that all their discussions with the employees had to follow the same way that they would consider information on any other matter. So there would have been a comfort zone in anything that was done, but obviously they had to accept the 14 days and things like that. You can see in relation to the meeting on 24 May, there were a number of questions raised which forced them to change their schedule for this matter.

PN127

THE SENIOR DEPUTY PRESIDENT: Unfortunately Mr Carland is not here and he can't tell me, and I am interested to know what was the nature of the questions, what was the nature of the discussion, and how did the people with the more severe disabilities have the matters explained to them.

PN128

MR MALONEY: Well, I think you will also see in there, your Honour, that the normal process is to send documents home, and to suggest to the employees that they have friends or rellies or carers read things to them. That is what happened.

PN129

THE SENIOR DEPUTY PRESIDENT: Yes, I understand.

PN130

MR MALONEY: Yes. The detail that you take me to, your Honour, I don't think I will be able to assist on.

PN131

THE SENIOR DEPUTY PRESIDENT: No. I am loath to have this matter adjourned to enable that to take place, but I have to be satisfied.

PN132

MR MALONEY: I understand that, your Honour. I would say to you though that this is probably the eighth or ninth one I have done, and with the exception of one, they have all been done the same one. There is nothing to suggest in my presentations to the Commission to date that anything is other than - - -

PN133

THE SENIOR DEPUTY PRESIDENT: I am not suggesting - - -

PN134

MR MALONEY: I am trying to write that in, your Honour.

PN135

THE SENIOR DEPUTY PRESIDENT: I am not suggesting there is anything improper in the way in which the matter has been handled at all. What I am saying is that I am not certain that I know enough about the detail of the way in which it was explained to employees to be able to say that I am satisfied that the consent was genuine. That is my concern.

PN136

MR MALONEY: Your Honour, one of the things that arises in all these is the actual voting process, how that differs from place to place. In some places it is the green card, red card approach. Green, yes, we will have it, red, no, we won't. Others bring in an advocate from outside, a secret ballot. There are variations all over the place. I suppose - - -

PN137

THE SENIOR DEPUTY PRESIDENT: How was the vote conducted here on 21 June?

PN138

MR MALONEY: Sorry, your Honour?

PN139

THE SENIOR DEPUTY PRESIDENT: At the end of clause 5.1 of the statutory declaration of - all of them, but Mr Carland in particular. He says: "On Thursday, 21 June, a vote was conducted." What form did that vote take? Was it by secret ballot, was it by show of hands, or was it red card, green card? How did the people vote?

PN140

MR MALONEY: I have some raw data here, your Honour; I could help with that. The question is: how was the vote taken. Show of hands with employees in attendance and postal votes for employees not in attendance on 21.6.01. The majority of those that took part in the vote agreed with the proposal. The vote for the EBA was 68 for and eight against, and nine employees did not vote.

PN141

Your Honour, what I do is issue the employer - because I do not prescribe a method for doing it, because I think that would be wrong, I must fit in with them.

PN142

THE SENIOR DEPUTY PRESIDENT: I accept that.

PN143

MR MALONEY: I give them a pro forma sheet, and the question is: how did you explain the proposal, and on what date did the explanation occur? And arising out of that question came 5.1; that is the detail I received there. I am in a bit of a quandary, your Honour, without Mr Carland here. Would a follow-up letter be - - -

PN144

THE SENIOR DEPUTY PRESIDENT: Yes, I think that may alleviate my concerns, a letter from Mr Carland explaining precisely how the matters referred to in 5.1 took place.

PN145

MR MALONEY: Do I take it, subject to you receiving that and being satisfied, that we could certify?

PN146

THE SENIOR DEPUTY PRESIDENT: Yes.

PN147

MR MALONEY: Well, I will get on to that today, your Honour.

PN148

THE SENIOR DEPUTY PRESIDENT: Yes, thank you.

PN149

MR MALONEY: If the Commission please.

PN150

THE SENIOR DEPUTY PRESIDENT: Have I stopped you in your address?

PN151

MR MALONEY: You have, your Honour.

PN152

THE SENIOR DEPUTY PRESIDENT: Is there nothing else you wanted to put?

PN153

MR MALONEY: No. I think you have made the point now where I have to go, and I will get that to you as soon as I can.

PN154

THE SENIOR DEPUTY PRESIDENT: Yes, thank you.

PN155

MR MALONEY: Thank you, your Honour.

PN156

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Maloney. Well, subject to receiving that letter from Mr Carland and being satisfied with his exposition of how the employees were made aware of what was going on and what was in agreement so that I can be satisfied that they genuinely agreed to it, I will certify the agreement to be known as the Ballarat Regional Industries Enterprise Agreement 2001.

PN157

For reasons similar to those given by Bolton J in the Warrinyan Incorporated Enterprise Agreement 2000, print S7568, I will not designate an award, and I have reached a conclusion that, whether or not there is a failure in regard to the no disadvantage test because of that, the certification of the agreement would not be contrary to the public interest, and section 170LT, subsection (3), applies to the agreement. I echo Bolton Js remarks, and I quote:

PN158

In so deciding, I have taken a view that making the agreement is part of a commendable strategy ...(reads)... obtain suitable and varied work to be performed by workers with a disability.

PN159

I end the quote there, which I have slightly edited. So subject to the receipt of that letter and being satisfied with its contents, I will issue a decision and an appropriate instrument certifying the agreement. Thank you for your attendance, Mr Maloney.

PN160

MR MALONEY: Thank you, your Honour.

ADJOURNED INDEFINITELY [10.15am]