C2001/4327, Transcript of Proceedings [2001] AIRCTrans 3383 (4 December 2001)

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TRANSCRIPT OF PROCEEDINGS


AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT DUNCAN

C2001/4327
C2001/4475

FINANCE SECTOR UNION OF AUSTRALIA

and

AUSTRALIA AND NEW ZEALAND BANKING
GROUP LIMITED

Notification pursuant to Section 99 of the Act
of a dispute re Total Employment Cost
salary packaging and an associated
Individual Employment Agreement

BANKING SERVICES - ANZ GROUP - AWARD 1998

Application pursuant to section 113 of the
Act by Finance Sector Union of Australia and
Another to vary re insertion of a new subclause
from 6.3 relating to Total Employment Cost
(TEC) package agreements

SYDNEY

9.35 AM, MONDAY, 20 NOVEMBER 2001

Continued from 20.9.01

Hearing continuing

PN321

THE SENIOR DEPUTY PRESIDENT: Any variations to appearances?

PN322

MS M. MALONEY: Your Honour, just in case I had better make an appearance as well. On behalf of the Finance Sector Union of Australia - - -

PN323

THE SENIOR DEPUTY PRESIDENT: I think you're resuming an appearance Ms Maloney?

PN324

MS MALONEY: Yes, I don't think I had MS A. CLAUDE with me last time so I announce Ms Anna Claude.

PN325

MR F. PARRY: If your Honour pleases, I don't think we were face to face last time, I don't think whether that affects whether I need to appear or not.

PN326

THE SENIOR DEPUTY PRESIDENT: Not it doesn't Mr Parry.

PN327

MR PARRY: In any event I continue an appearance.

PN328

THE SENIOR DEPUTY PRESIDENT: Thank you. Well you're the driver Mr Parry.

PN329

MR PARRY: If your Honour pleases. There has been filed various submissions both by ourselves and by the FSU, I don't propose to repeat those. The position is that there are a number of arguments that are advanced by the bank as to why the Commission does not have jurisdiction to deal with the section 113 application. Now your Honour as regards to Total Employment Cost packaging there have been proceedings before your Honour and there have been some documents that were tendered I think in respect of the section 99 notification. There are a number of FSU exhibits and I only proposed referring I think to the first of those exhibits, FSU 1, that would be the only exhibit that I would submit is relevant to these proceedings.

PN330

THE SENIOR DEPUTY PRESIDENT: What is FSU1?

PN331

MR PARRY: Exhibit FSU1 I think on the occasion that this matter came before the Commission as a section 99 notification was a document tendered by the FSU with a heading, ANZs Total Employment Cost salary packaging and associated individual employment agreement offered to level 3 branch managers and it contained a bundle of documents which were the documents upon which an offer was made to level 3 managers.

PN332

THE SENIOR DEPUTY PRESIDENT: Yes I have it.

PN333

MR PARRY: I'm certainly not going to take your Honour through it but it does contain within it a description of what TEC is in substance and your Honour will note that that exhibit contains a covering letter to an individual within the bank which I'm not going to take your Honour to. It also attaches an employment agreement and it has a schedule for that employment agreement headed, remuneration entitlements, schedule A.

PN334

THE SENIOR DEPUTY PRESIDENT: Yes.

PN335

MR PARRY: And thereafter, I think in the second paragraph it refers to essentially:

PN336

TEC as the fixed component of remuneration, in principle TEC comprises notional superannuation, salary and cash benefit ...(reads)... following acceptance of this package.

PN337

Thereafter is set out various matters that can be dealt with. So your Honour within that exhibit I think your Honour will find broadly what the FSU and ourselves are talking of when we are speaking of TEC. Now your Honour, without repeating the arguments I'll just go through them in the order that we've advanced them in our written submissions. There are in effect, they come under three broad headings, the first concerns whether the application for variation by the FSU comes within the terms of the industrial dispute as currently found. Secondly, if it does then the extent to which section 89A(2) and (6) operate on that industrial dispute and thirdly, section 170N and its operation.

PN338

Now your Honour, the first argument in that concerns whether there is an industrial dispute in existence which would allow for the section 113 application to be made. We have submitted that there is not such an industrial dispute in existence. Your Honour, the argument with regard to this matter does not raise an issue of whether salary packaging and various associated benefits can be the subject of an industrial dispute, the issue is whether it is within the ambit of the existing dispute and your Honour there is an existing dispute which was found in 1991, it has been attached to the submissions of the FSU. There is the letter of 6 September 1991 and the attached log making a number of claims as against the bank.

PN339

Now your Honour, there's some 54 claims, we accept that within those claims are claims for salaries, allowances and vehicle allowances. There is however not a claim for either salary packaging or total employment cost packaging. Now, the issue is of course with regard to any argument about whether a draft order falls within the scope of the industrial dispute. We acknowledge that the FSU have put the tests fairly, that is whether the matter is in ambit or if an award was made in the terms of the application whether it was relevant or reasonably incidental to the matters in dispute.

PN340

Now, this submission depends on an analysis of the draft order. Your Honour, we will be returning in greater detail to the terms of the draft order when we return to section 89A but the FSU in their argument, I think it's set out in paragraph 11 of their submissions, have submitted the proposed variation contains provisions that are relevant and reasonably incidental to the settlement of the industrial dispute in respect to salaries, payment of salary, part-time employment, motor vehicle allowance and superannuation.

PN341

Now, we submit that the actual application for variation is not making claims for any of those matters, rather it is a claim or a clause that is placing conditions on salary packaging itself and insofar as it makes such claims it is not certainly we say within the ambit of the dispute but we further say that attaching conditions to salary packaging does not of itself make matters incidental to the settlement of industrial disputes about salaries.

PN342

It follows, we submit, that there is no claim or the application does not fall within the ambit of the industrial dispute. Unless your Honour has something with regard to that, I propose moving on to section 89A.

PN343

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

PN344

MR PARRY: As your Honour pleases. Your Honour, if the Commission forms the view that attaching various conditions to total employment cost is within the scope of the dispute, then certainly, section 89A(2) and (3) become relevant. In those circumstances, it then comes down to analysing exactly what the draft order entails. Might we say, at this stage, that this is not an argument about the current clause, and the current clause 6.2, as your Honour will have noted, is a clause which says that people that accept TEC do not have certain award provisions applying to them. That clause, as it currently stands, in no sense regulates total employment cost packaging, it simply is, properly analysed, a sort of opt out clause.

PN345

That is, if an employee accepts these arrangements, then certain provisions in the award don't apply. What the draft order does is go far beyond that and introduce a range of matters which place restrictions on and conditions attached to total employment cost packaging. As your Honour has dealt with a number of cases with 89A, sub section 2 contains a list of some 20 matters which are to be given industrial usage terms and your Honour is familiar with the Commonwealth Bank decision. The draft order firstly proposes deleting sub clause 2 and inserting a clause. 6.2.1 of the draft order provides:

PN346

ANZ may offer and a staff member may accept a total employment cost remuneration package if a staff member is permanently appointed to a position graded not lower than level 3.

PN347

That is a clause which limits who total employment cost packaging can be offered to. No such restrictions currently appear in the award. Your Honour, leaving aside the merit argument of that, we submit that where a clause seeks to restrict who certain terms can be offered to, and one turns to section 89A, one asks where restricting who can be offered certain terms and conditions comes within 89A. In our submission, restricting who can be offered certain terms and conditions is not a section 89A(2) matter, and we say that's manifestly so.

PN348

Then the issue is whether, somehow, section 89A(6) can be relied on. Now, your Honour, that's the provision which allows the Commission to include in an award provisions that are incidental to the matters in sub section 2 and necessary for the effective operation of the award. The issue is whether restricting who total employment cost packaging can be offered to is incidental to a matter in sub section 2 and necessary for the effective operation of the award, then becomes necessary for consideration. It appears that the FSU are arguing that in respect of allowable matters, salary packaging is incidental, and I think this is taken from paragraph 13, it is argued by the FSU that salary packaging itself is incidental to A, B, C, E, F and R. This is contained in paragraph 13 of their submissions.

PN349

Firstly, we say with regard to 6.2.1, that this is not making prescription for any of those matters. We say that it is not incidental to those matters but, more importantly, we say that restricting who TEC can be offered to can in no sense be said to be necessary for the effective operation of provisions dealing with those allowable matters. So we submit that 6.2.1 does not fall with 89A(2) nor (6). 6.2.2 is similar to the current wording of 6.2. The difference is only that there is added in a new clause from the award, being the final one, "Shift work applies to level 3 staff members only".

PN350

Insofar as there is a variation which, we submit, is in similar terms or the similar effect of 6.2.1, the same issues arise and I don't repeat those arguments in respect of that. The next aspect of the application is 6.3. This places in it a provision that acceptance of TEC remuneration is purely voluntary and if a staff member declines the offer, the decision will not jeopardise their conditions of employment, the staff members promotion on career prospects with ANZ will not be detrimentally affected if they choose not to accept a package. Your Honour, that clause can be described in one of two ways.

PN351

Either it is somehow a broad philosophical position with regard to TEC whereby it sets out intents, objectives or philosophies and, in that event, we would submit that it's not allowable. Alternatively, and as it appears to be advanced by the FSU, this particular sub clause is a clause which is one which is a protection and preserves entitlements, and this is referred to in paragraph 23 of their submissions. In those circumstances, we then need to consider why a clause in that form is allowable. If there is to be protection of entitlements, and it is to provide some benefit, then the first sentence of the clause indicates, as it says, the decision will not jeopardise their conditions of employment if they accept. Apparently then the protection is they have acceptance of TEC if conditions of employment were jeopardised would be a breach the award.

PN352

Secondly, are staff members promotional career and prospects if detrimentally affected that would also be a breach of the award. such a broad discrimination clause, if I might describe it as such, is not within any of the headings identified in 89(2). Your Honour, I haven't been able to find a clause dealing precisely with that but does your Honour have a copy of the Award Simplification decision?

PN353

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

PN354

MR PARRY: I think I can provide one for the Commission. I have a folder of cases referred to in the submissions of the ANZ, if I could hand that up to your Honour.

PN355

THE SENIOR DEPUTY PRESIDENT: Yes, thank you. It's a document that would've been coming forward at some stage, in any event, is that right? Or did you not intend to if I had the ASD?

PN356

MR PARRY: No, I would hand it up anyway, I'm not going to carry it back to Melbourne, your Honour. These broad discrimination clauses and I do describe it as that because it's a clause which is apparently designed to protect employees against discrimination in their career. Broad discrimination clauses were dealt with generally in the ASD and, your Honour, I hope that the ASD you have in your folder is one of 169 pages?

PN357

THE SENIOR DEPUTY PRESIDENT: Yes, it is.

PN358

MR PARRY: There is firstly, on page 10 of that a provision dealing with sexual harassment, at 14.1 about the second paragraph on the page. That relates to what appears on page 75 which was a clause that was in the old Hospitality Award, all employees are to be allowed to work in an environment free of sexual harassment. I freely acknowledge this is not on all fours with the clause that is proposed in the present clause but in my submission, similar sort of considerations apply, that is, a clause designed to remove some form of discrimination is, in my submission, not allowable.

PN359

In the decision itself on page 10, I don't repeat what's set out there under the heading of sexual harassment, we submit that similar considerations apply insofar it deals with whether 14.1.1 is or is not an allowable award matter. We simply say it is not allowable and it is also not incidental. Also, in the ASD there was deleted another clause which dealt with - and they also deleted those provisions about harsh, unjust and unreasonable dismissal. Again, it's just getting into a slightly different area and this appears on page 13 of 169.

PN360

Again, it is dealing with a broad protective regime against discrimination and in my submission, those broad protective regimes have been held to be not allowable and the clause in the form of 6.3 in my submission, insofar as it seeks to protect concepts such as promotional and career prospects and conditions of employment is not allowable.

PN361

Your Honour, that 6.4.1 then goes to in relation to the offering of TEC packages to Level III staff members the following conditions shall apply and the first is 6.4.1:

PN362

A staff member is not and will not be under any pressure or coercion to accept an offer of remuneration and its associated conditions.

PN363

In my submission, the same argument arises with regard to prohibitions on pressure or coercion as in respect of the prohibitions contained in 6.3 and I don't repeat those arguments. Then 6.4.2 moves beyond these broad discrimination sort of considerations to a more direct matter when it comes to TEC and 6.4.2 provides:

PN364

If a staff member accepts a package they will be given the opportunity to review the particular mix of package items elected annually and on promotional lateral transfer.

PN365

This is a provision which obviously gets very much into the heard of TEC and seeks to regulate the terms and content and leave that regulation up tot he employee. It is argued by the FSU in their submissions that and this appears in 6.4.2, sorry, this is in their paragraph 25, it's argued by the FSU that this clause is incidental to the matters in section 89A(2)(c) rates of pay generally and is necessary for the effective operation of the award. So the FSU argue that 6.4.2 is not incidental, it comes within 89A(6).

PN366

The issue is, in my submission, whether 89A(6) makes a regulation of terms and content of TEC incidental. The award simplification decision again, I can't find a decision of the Commission which deals precisely with and certainly neither party has I think, with a recent Commission decision on salary packaging or TEC, so we can't assist your Honour with some neat precedent. We are arguing this I think, both sides, from essentially first principles.

PN367

The award simplification decision refers to and I think on page 15 it deals with overtime and what was deleted from the Hospitality Award about requiring an employer to offer employees the opportunity to work overtime and so, it was an obligation on the employer and this appears on page 15 under the heading overtime, the full bench in the ASD decision reasoned that where there was an obligation on an employer to offer employees overtime, that was not allowable nor justified pursuant to 89A(6).

PN368

MS MALONEY: Your Honour, if I could seek your guidance, I need to seek clarification, I don't wish to disrupt Mr Parry's presentation but in accordance with your directions of 20 September the parties have submitted to your Honour their submissions in respect to this matter and in their primary submissions ANZ has not raised any of these issues. If they wished, in terms of identifying what areas of the award simplification decision they are taking you to, for example, all they've stated in their primary submission, is that in terms of 6.4.2 it goes to the terms of the package and who they can be offered to in paragraph 19.

PN369

Your Honour, all I'm foreshadowing is this and further, your Honour, it is not elaborated upon in their reply because simply their reply states at paragraph 5:

PN370

As to allowable matters again, the FSU misconceived the substance of the clause. There is no issue that the previous clause was allowable, the primary submissions are not repeated there.

PN371

Then they refer to consent awards. All I am, I suppose, foreshadowing, depending upon what Mr Parry puts, but if there are new issues that they raise in terms of their arguments, we might wish some further time to consider it. It is just a bit of concern to us that we did go - we believe we went to some detail in terms of answering their primary submission, but now they are referring the Commission to sections of the Awards Simplification Decision, which obviously they had sufficient time, more than sufficient time because they had more time than we had, in making those references and taking you on to that decision in somewhat detail when they put their primary submission.

PN372

Mr Parry can continue, but I'm just foreshadowing, depending upon what else he is proposing to put to your Honour today because it was my understanding, your Honour, that we were to give detailed submissions, which we have. We have a view about the degree of detail that ANZ have put in their reply but anyway, so we just foreshadow that if there is any new material they put today, we may wish to have some further time.

PN373

THE SENIOR DEPUTY PRESIDENT: I note that, Ms Maloney, at this stage. I think that's all I can do.

PN374

MR PARRY: Your Honour, with regard to this issue about regulating the terms and consent of the package, there are decisions that the FSU have referred to. On looking at each of those decisions it is our submission that the clauses that have been allowed by the Commission don't regulate the terms of the packages, but I think in each case that the FSU have advanced, the provisions allow for the offering of total employment cost packaging and have provided in some cases the terms and conditions should be no less favourable. Now, we simply say those decisions don't help, and don't advance the position of the FSU.

PN375

The right to review, we say, is not incidental to rates of pay and is not necessary for the effective operation of the award. The award, as it stands, has a position for TEC. This is an award made in 1998. There is no suggestion that the award needs such provisions to operate effectively.

PN376

Now, your Honour, the next provision is 6.4.3, about cooling off periods, and the same issues arise under 6.4.3 as regard to 6.4.2. I don't repeat those. 6.4.4 is said by the FSU that a provision that allows employees to change their mode of employment is incidental.

PN377

THE SENIOR DEPUTY PRESIDENT: 6.4.5?

PN378

MR PARRY: I'm sorry, 6.4.4.

PN379

THE SENIOR DEPUTY PRESIDENT: I see, yes, of course.

PN380

MR PARRY: They say that is incidental. Again, we make the same argument as with regard to 6.4.2 and 6.4.3. We say it is not incidental and not necessary for the effective operation of the award. Now, 6.4.5, deals with the allowability of offering a part time employee a remuneration package, and that could be on a pro rata basis. I think it is said to be allowable under 89(a)(ii)(r), which deals with types of employment and incidental to 89(a)(ii)(c).

PN381

In my submission, the right or not or the entitlement to offer terms and conditions to part time employees does not come within 89(a)(ii)(r), and as to whether it is incidental again we submit it is not incidental and not necessary for the effective operation of the award. 6.4.6, is a provision which compels, or would compel, if granted, the ANZ to offer TEC to all other employees in the business unit.

PN382

Now, the reliance here, and this comes from paragraph 29 of the FSUs submissions, is that - and I think there is some reliance on a Western Australian Award here. Paragraph 29 says and I quote:

PN383

PN384

This provision as in the provision of 6.4.6 of the application ...(reads)... employment conditions.

PN385

Now we submit that compelling an offer of certain employment to other employees cannot be allowable, we say, similar to the requirements to offer overtime that I've taken your Honour to earlier in respect of the Award Simplification Decision at page 15. I don't repeat those submissions. Certainly similar arguments arise as with regard to 6.3 which I've already advanced.

PN386

6.4.7 deals with a requirement for consultation. Your Honour, that has been dealt with in the ASD at page 11, where there are requirements where the Commission dealt with requirements to consult. I don't repeat and I'm not going to take your Honour to those provisions. Your Honour is also aware of a decision in respect of Telstra print P3756, which deals with consultation and its allowability and, in our submission, the authorities are clearly to the effect requiring consultation is not allowable.

PN387

6.4.8 is a provision which requires the ANZ to provide a minimum of 6 weeks for a staff member to consider an offer of a package after the union has been consulted. The FSU have argued that that is incidental to rates of pay. In our submission, a provision of a period for consideration of an offer has nothing to do with rates of pay, it is not incidental, and is certainly not necessary for the effective operation of the award.

PN388

6.4.9 deals with the cost of independent financial advice. Now, your Honour, I hope has the Commonwealth Bank decision before you. Your Honour, in all likelihood the Commonwealth Bank decision that you have is an internet print. The one I have - - -

PN389

THE SENIOR DEPUTY PRESIDENT: Is the real thing.

PN390

MR PARRY: The real thing, an industrial report.

PN391

THE SENIOR DEPUTY PRESIDENT: That's the real thing, too.

PN392

MR PARRY: Either the print or an industrial report, but I'm not sure what your Honour has got.

PN393

THE SENIOR DEPUTY PRESIDENT: You're quite right, I have an internet print.

PN394

MR PARRY: Your Honour, the Commonwealth Bank decision commences to deal with this - - -

PN395

THE SENIOR DEPUTY PRESIDENT: I'm sorry, no, it is an IR print extract that I have, 74 IR 446.

PN396

MR PARRY: Yes, and your Honour will recall that with regard to allowances the Commonwealth Bank Full Bench dealt in a fair bit of detail with allowances and this commences at page 459 where the Commission was dealing with accident pay and half way down the page the Full Bench said:

PN397

In this instance accident pay is clearly not an expressly declared allowable award matter ...(reads)... concept of allowances.

PN398

Now, then - and I'm not going to read this to your Honour - there are certain arguments based on High Court authority dealing with allowances. There is then reliance on what Latham CJ said and there is an extract at the bottom of the page on 459. We rely in this present case on half way through that quote where it starts:

PN399

When the word is used in connection with the relation of employer and employee ...(reads)... as compensation.

PN400

Now, we submit that the provision of independent financial advice and the payment therefor at the option of the employee is not a requirement within the terms of Latham CJs articulation nor is it compensation for some unusual condition. Now, what happened then in this Full Bench decision was that on page 460, half way down the page, they say:

PN401

In seeking to apply Dixon Js dictum -

PN402

and these are words which appear directly above it:

PN403

- we do not find much assistance from the context in which the term allowances appears in 89A(2)(j) ...(reads)... related to their work.

PN404

Now, that adds in to the concept of allowance the proposition that the allowance may be of a kind appropriately the subject of an industrial award. In our submission the provision of independent financial advice obtained by a member of staff when offered a remuneration package is not of the kind appropriately the subject of an industrial award. Indeed, the offering of a package and the consequence that it would lead to independent financial advice does not make the obtaining of that financial advice a requirement nor is it compensation for some condition of service so we submit that what is proposed in 6.4.9 is not an allowance within the approach adopted by a Full Bench of this Commission. 6.4.10 raises this proposition that no staff member will be financially disadvantaged by moving to a TEC remuneration package. Your Honour, I've already advanced arguments about discrimination with regard to 6.3 and 6.4.1 and the same submissions arise and I don't repeat them.

PN405

6.4.11 is a claim for additional amounts to be offered to level 3 staff members and there is a method of calculating those amounts based upon percentages. We have already advanced in our submission that this is a claim for rates above award rates. We say it's part of a scheme to regulate the contents of TEC and we say it's the same argument as for 6.4.2, that is it's not allowable in 89A(2). Your Honour will also have noted from our submissions that we say 89A(3) is relevant. We accept that your Honour may form the view that that argument is linked up with any merit argument and might not be able to be determined until and if that comes into play.

PN406

We do note that the FSU in their submissions have advanced, I think it's in paragraph 43 of their submissions, they have advanced, and I think it's a typing error, but I think that 6.4.11 is designed to prevent the award safety net for level 3 managers being circumvented - I think that is 6.4.11, my learned friend is nodding - by compensating these managers for losing these various award entitlements. So the FSU see this as a compensation clause. We say it doesn't come within 89A(2). We also say 89A(3) is relevant.

PN407

Now, your Honour, the next matter raised by the FSU is that the clauses in 6.2, 6.3 and 6.4 somehow is a facilitative provision. Now, we say this is a merit argument and doesn't advance the jurisdictional arguments, however, we say that the clause as it currently stands is not a facilitative clause, it is a clause which is, as I described it earlier, enables employer and employees to agree on a set of conditions whereby certain provisions of the award simply don't apply to them. My understanding of facilitative clause deals with how certain award provisions to apply to employees and enable an employer and employee to agree on how those provisions can be applied. This argument is advanced by the FSU in paragraph 37 of their submissions and paragraph 37 says in the first sentence:

PN408

The proposed variation is consistent with the above definition.

PN409

And there is a definition of facilitative provision set out, in that it

PN410

allows for an employer and the employee to reach agreement to move to TEC remuneration packaging, and therefore no longer be entitled to various conditions of the award.

PN411

We simply say that clause as proposed does not allow for that. Indeed what the award already contains allows for that to occur. It is also said in paragraph 37:

PN412

That is, prior to going on to TEC remuneration packaging, the staff member would be entitled to all the provisions of the award.

PN413

It goes on, and says:

PN414

Having been offered and accepted TEC remuneration packaging the staff member is agreeing to move away from the standard approach in the award by becoming disentitled to various award provisions.

PN415

We say that what is proposed is certainly not a facilitative clause. It's a set of restrictions of how and when TEC can be offered. We can that's a merit argument and does not advance the jurisdictional argument at all. The next heading of the FSU argument deals with allowability in jurisdiction, there is then reference to a full bench decision in the Metal Industry Award on the casual rates of pay which refers to 89A(4) and as I've indicated, we don't rely on 89A(4).

PN416

It is also submitted there in paragraph 41 that somehow even if the Commission forms the view that part of the claim is outside 89A, then it does not create a jurisdictional barrier and somehow, I paraphrase, the Commission can mould the terms of the application to conform with the requirements of section 89A. It is argued that our arguments are premature. We simply advance the arguments on the basis of the application as advanced. If there is to be some moulding to take place, obviously we will have to then consider whether that moulding brings the application within 89A. Minimum rates is next dealt with and I don't repeat what we've dealt with in regard to our submissions.

PN417

MR PARRY: Your Honour, that then leaves section 170M. This raises the operation of the bargaining notice. Now, that bargaining notice is attached to our primary submissions and it is attachment annexure A. It's a notice of initiation of a bargaining period. It advises under 170 - - -

PN418

THE SENIOR DEPUTY PRESIDENT: This, in the copy of the submission I have, there is a note which I presume has emerged from your instructing solicitors, Mr Parry, that A is to be provided.

PN419

MR PARRY: I so provide to the Commission.

PN420

THE SENIOR DEPUTY PRESIDENT: Thank you.

PN421

MR PARRY: Now, this is a notice of initiation of a bargaining period under 170MI of the act. It contains the statement that the FSU intends to try to make an agreement, to have that agreement certified. It specifies the particulars are required by 170MJ of the act, and relevantly to 170N we submit that paragraph 4 contains the matters the initiating party proposes should be dealt with by the agreement. That includes a number of headings. The first is salaries and remuneration matters. The third is staffing work loads and performance targets. The fourth is hours of work.

PN422

We note that the first is salaries and remuneration matters. The FSU in their written submissions, and this is in paragraph 9, describes their concept of TEC. It is said there, and I quote from paragraph 9:

PN423

TEC is a salary packaging arrangement that gives a fixed ...(reads)... of remuneration.

PN424

So in my submission, insofar as the FSU have said that they propose the agreement should be dealt with, the agreement should deal with salaries and remuneration matters, they see certainly, and we say objectively it's a fair summation, that TEC comes within remuneration matters. Now, the issue is then, what has happened? There has been a bargaining period initiated, and there have been negotiations between the parties and at various times negotiations have either ceased or parties have said that they don't want to deal with certain matters.

PN425

Then, whilst the bargaining notice remains in force, it is still operative, and still a bargaining period in existence, the FSU make an application to vary the award to deal with what we say are remuneration matters. The issue is whether that then activates 170N. Now, 170N requires that there be a bargaining period and matters at issue between the negotiating parties. There is no doubt that the ANZ and the FSU are in a bargaining period and are negotiating parties. The matter is then whether the issue of conditions attached to TEC is a matter in issue. Your Honour has been referred to, I think, the Metals Award decision, print S1931. Does your Honour have a copy of that in the folder?

PN426

THE SENIOR DEPUTY PRESIDENT: No. It's not in your book, is it, Ms Maloney?

PN427

MS MALONEY: Your Honour, I didn't raise it, but I don't have a book. It might be useful if I did, because my copies are different to the copies that they've got. Do you have a spare one? You don't.

PN428

THE SENIOR DEPUTY PRESIDENT: Yes, I understand your difficulty, Ms Maloney.

PN429

MR PARRY: I'll hand over my copy of the Commonwealth Bank decision, which is one I've referred to.

PN430

MS MALONEY: Right.

PN431

THE SENIOR DEPUTY PRESIDENT: What I was referring to when I referred to a book was your submission, Ms Maloney, which has some - - -

PN432

MS MALONEY: Your Honour, I didn't include it. I do - - -

PN433

THE SENIOR DEPUTY PRESIDENT: Very well. That is all I need to know, don't worry.

PN434

MS MALONEY: Your Honour, I do have copies here if that would help because I was going to tender it?

PN435

THE SENIOR DEPUTY PRESIDENT: I see, well that possibly would, if you would make those available now. If the decision is paragraphed we have no difficulty but naturally some of the older decisions aren't paragraphed and we do get into difficulty then with varying copies. This is paragraphed.

PN436

MR PARRY: Yes, it is paragraphed, your Honour. This is a decision of a Full Bench dealing with arguments concerning 170N. Now, your Honour, in this particular case the argument was raised about whether the matter was an issue and your Honour will note paragraph 9 there were certain submissions made by the Commonwealth and others about whether 170N applied. The decision of the Commission really commences at paragraph 29 and 30. Paragraph 30 says:

PN437

Section 140N is direct against an exercise of arbitration powers in relation to a matter that is at issue between the negotiating parties. ...(reads)... Where identified negotiating parties are among the parties to the proposed arbitration then in relation to those parties and that matter at issue between them the arbitration power may not be exercised.

PN438

Now, the relevance of that of course is that the Commission there in that Full Bench decision formed the view that there would be at least an overlap between the relevant putative arbitration and the relevant bargaining period. I will draw this together shortly but there is another decision of Kurra which is print 0859. Does your Honour have a copy of that because this isn't paragraphed.

PN439

THE SENIOR DEPUTY PRESIDENT: Yes, I do.

PN440

MR PARRY: Does your Honour have a 10 page copy of that?

PN441

THE SENIOR DEPUTY PRESIDENT: Yes, it is a 10 page copy.

PN442

MR PARRY: Where I would take your Honour is to page 6, halfway down page 6.

PN443

MS MALONEY: Sorry, your Honour, I have got a 13 page - you wouldn't have a spare, would you?

PN444

MR PARRY: Paragraph commencing "The next consideration".

PN445

MS MALONEY: That's all right, your Honour.

PN446

MR PARRY: The Full Bench here firstly deals with and I am going to slightly paraphrase because it covers about two pages, considers whether matters are at issue. At the bottom of that paragraph it said:

PN447

The subject matter of a reduction in hands has generally been put in issue in the sense of it being raised by the CFMEU as being a matter about which it wishes to negotiate or reach an agreement.

PN448

It is then said in the next paragraph that:

PN449

The manner in which the CFMEU has chosen to list subject matters about which it wishes to negotiate and has not prescribed in any detail the content or terms of any proposed clause dealing with that subject matter. The potential restraints that are placed on the Commission arbitrating are broad. That however may be the effect of section 170N

PN450

They are saying it was the FSUs choice when they initiated the bargaining period to use the terminology they did, to refer to remuneration and that is a broad term. It does, on their own submission, encompass TEC and accordingly to paraphrase the words of the Full Bench "The restraints placed on the Commission arbitrating are broad".

PN451

The Full Bench went on in that case and dealt with the matters in issue in the next paragraph in the sense of not being agreed. Main terms of section 170 and restrained the Commission from arbitrating. In this instance it may not be necessary finally to decide the point on the basis of the broad description of issues declared in the section 170MJ, see notice.

PN452

That is because it is not disputed that a claim that a provision in the same terms as clause 24, part of the proposed agreement, is among the specific terms at issue in the negotiations about the agreement proposed. Over the page:

PN453

Thus on the facts of the case there is a more specific matter at issue than the bare log of claims entering the notice initiating bargaining period.

PN454

It then goes on in the next paragraph and deals with matters about whether they could be at issue or not, which I don't take the Commission to. In the next paragraph the commission leaves aside the motivational grounds for the application but notes it is being asked to exercise powers under section 111 and section 113 and the fact is, as they noted there, the subject matter was the reduction of hands. Now, some ways as has been said later the current decision is a fairly straight forward one where there is a bargaining period, what was at issue was clearly the subject of negotiations.

PN455

Your Honour has handed down a decision in respect of tertiary institutions and does your Honour have a copy of that particular decision which is print S8837?

PN456

THE SENIOR DEPUTY PRESIDENT: No.

PN457

MR PARRY: I have got a copy to hand up to your Honour. Perhaps I will hand up at the same time as decision of Commissioner Smith which I think your Honour has referred to fairly extensively and that is in print S7058.

PN458

THE SENIOR DEPUTY PRESIDENT: Do you have them Ms Maloney?

PN459

MS MALONEY: Yes, your Honour.

PN460

MR PARRY: Now, your Honour the purpose of handing these up and I go then in a bit more detail, is that we submit that in so far as these decisions raise issues of bargaining in good faith they are not in accordance with section 170(N) and are not consistent with the legislation. Your Honour, the decision of 2 August 2000, print S8837 of your Honour deals with arguments concerning 170(N) and your Honour agrees with some observations of Commissioner Smith and I think they are set out in page 2 of 5. The first part of that says:

PN461

There can be little doubt that where a subject matter is included in a bargaining notice prima facie the matter is at issue between the parties. Similarly, I hold the view that where a response to a bargaining notice is to put a matter on the table for bargaining, that act also can put a matter at issue between the parties.

PN462

No doubt, in my submission, when a party initiates a bargaining period with a bargaining notice and includes a claim within it that matter is at issue between the parties. Now, in negotiations arising out of that bargaining notice a respondent to that bargaining notice being one of the other negotiating parties can put the matter in issue. However, the party who has received the bargaining notice does not control what is in the bargaining notice and has no say over whether it is a negotiating party or not.

PN463

Therefore when Commissioner Smith went on and dealt with the next part of the sentence, we submit that he fell into error in approaching the tests to be applied to 170(N). Commissioner Smith went on and said:

PN464

In my view, whether or not a matter is at issue will depend upon the factual circumstances surrounding the demands and the negotiations.

PN465

He went on and said:

PN466

Indeed, the test may well be whether or not any of the parties are acting in a bona fide manner and bargaining in good faith. The concept of bargaining in good faith is inherent in the scheme of 170(M)(i) and section 170(M)(j).

PN467

In my submission, those observations are not correct, indeed what the Act does is set up a scheme where one party can serve a bargaining notice and then create a bargaining period which is designed either to facilitate negotiation or indeed force the other party to negotiate. There is no requirement on a respondent to a bargaining period notice to negotiate at all. There is no requirement on the respondent to a bargaining period notice bargain in good faith. Now if a party who is served with a bargaining notice decides not to bargain at all that does not mean that the matters that are contained in the bargaining notice are not matters in issue.

PN468

Indeed the party that serves the bargaining notice may well seek to rely on that bargaining notice to force the other party to either negotiate or to concede to the demands but there is no tests about the parties who are in receipt of a bargaining period's notice to act in what is described as bona fide manner or bargain in good faith. The party who serves a bargaining notice controls the agenda, in effect, they can decide matters that are certainly an issue. In so far as Commissioner Smiths observations about parties acting in good faith and bargaining in good faith, those observations may well be applicable to an initiator of a bargaining notice.

PN469

That is, a party might serve a bargaining notice purely for the purpose of activating 170(N). Now in those circumstances, the commission might form the view that that is not putting a matter genuinely in issue and in those circumstances the commission might form the view that 170(N) is not a bar to exercising jurisdiction. The concept of bargaining in good faith really raises issue of deceit, genuineness, doing things that are shams. In my submission, we are not suggesting here we are certainly not making the submission that the FSUs bargaining notice is a sham nor that they genuinely want to including in an agreement what they say they want to include in that document.

PN470

On the other hand, the FSU accuses us of not bargaining in good faith. We say firstly, 170(N) does not require that we bargain in good faith nor does 170(M)(i) or (M)(j) to the extent that Commissioner Smith suggests that that could be the case. We say that is not consistent with 170(N). Commissioner Smith went on and suggested that some of the aims of the Act could be corrupted by action which was simply designed to avoid arbitration. Well, might I say here the ANZ has not taken any actions designed to avoid arbitration. It has chosen not to negotiate with regard to certain matters as is its right under the Act. In my submission, that does not affect the operation of 170(N).

PN471

The real question in my submission for 170N is whether a matter is at issue between negotiating parties. Once a matter is in a bargaining notice and a bargaining period is commenced, then in this case the FSU has the right to take industrial action in support of claims made and that action is protected. The bargaining notice is an important instrument in the industrial system that we have.

PN472

The FSU itself has put the matter of remuneration in issue. The system and the operation of 170N will find great difficulty operating if during negotiations one party, the initiating party, says, I might have included that claim in my bargaining notice, but now I don't seek to negotiate about it at all. I now seek to go to the Commission to have that arbitrated, and because I have written to you saying that we are not going to negotiate about that or seek to pursue it, it is now longer a matter in issue. If that were to be the position then section 170N would in many ways cease to have any valid operation.

PN473

The simple matter here is if the FSU do not intend to reach an agreement with regard to remuneration matters, they should withdraw their section 170MI notice. The FSU cannot have it both ways. It cannot on the one hand have a bargaining period which gives it protection and enables it to take industrial action with the first item being remuneration, and on the other hand say, well we are not really - the matter of remuneration is not in issue and therefore the Commission can arbitrate about it. This is a matter in the hands of the initiating negotiating party and as we submit, it is a matter for the FSU. 170N will only operate whilst the bargaining period is in existence. If they withdraw it, then the parties cease to have the status of negotiating parties and 170N does not operate.

PN474

THE SENIOR DEPUTY PRESIDENT: What your saying is, is that you can't withdraw in part?

PN475

MR PARRY: No, my submission is that the bargaining notice should be withdrawn and can only be withdrawn in total and a new bargaining notice if necessary issued, but I am not here to give advice to the FSU about what they can and can't do in any event.

PN476

If the Commission pleases, those are the further submissions that we would make.

PN477

THE SENIOR DEPUTY PRESIDENT: I will have a short adjournment until 11.05.

SHORT ADJOURNMENT [11.00am]

RESUMES [11.11am]

PN478

THE SENIOR DEPUTY PRESIDENT: Ms Maloney?

PN479

MS MALONEY: Your Honour, there are some arguments that be raised by ANZ today that were not contained in their primary submission but I will attempt to address so if your Honour could bear with me. What I intend to do is go through our submission briefly, I don't intend taking the Commission right through it but also in the process I will also address some of the issues raised by ANZ in their reply to our submission as forwarded on 13 November and also points they've raised today, if I may.

PN480

Your Honour, firstly I'd like to say that the position of the finance sector union is that we totally reject the submissions that have been put by ANZ that this Commission does not have the jurisdiction or the power to deal with the application that we currently have before you. It is the submission of the FSU that the application falls within the jurisdiction of the Commission. As we've stated in our written submissions the purpose of the application is to maintain the integrity of the safety net value of the award for level 3 managers who by signing total employment costs remuneration packaging agreements will lose the protection of various conditions of the award.

PN481

Now, the application as part of that makes it clear we are seeking that going on to TEC is a completely voluntary process because of the fact that by going on to that method of remuneration you lose certain conditions of the award. Now, your Honour, as we have stated previously and I refer to the submissions and documentary evidence that we presented to your Honour in C number 2001 4327 which is the section 99 notification of alleged industrial dispute that came before you in August.

PN482

As we stated in those submissions and we believe supported by the documentary evidence it has always been the understanding of the finance sector union that the current clause 6.2 of the award applied only to group 4 category A to E managers and that it did not extend to any other levels of managers or staff below that group. Now, your Honour, I don't intend to go to those documentary evidence but I do intend and I'm trying to do this in the best way I can. In their reply to our submission on that point, your Honour and I'm referring to ANZ's reply.

PN483

THE SENIOR DEPUTY PRESIDENT: I should mark these documents. I won't go and try and get the continuing series from the earlier proceedings. I'll mark the submission of the ANZ which was filed on 12 October 2001 exhibit P1.

EXHIBIT #P1 SUBMISSION OF ANZ DATED 12/10/2001

PN484

THE SENIOR DEPUTY PRESIDENT: Submission and associated documents of the finance sector union exhibit N1.

EXHIBIT #N1 SUBMISSION AND ASSOCIATED DOCUMENTS

PN485

THE SENIOR DEPUTY PRESIDENT: And the ANZ's reply dated 13 November 2001 I'll mark exhibit P2.

EXHIBIT #P2 ANZ REPLY DATED 13/11/2001

PN486

MS MALONEY: Thank you, your Honour. In referring to P2 we refer to paragraph 3 of ANZ reply where they advise that they do not accept our understanding or the assertions that they claim that we've made in respect to the application of the current clause. We reject ANZ's submission on that point also their argument that our understanding of the application of the clause is not relevant. We say that our understanding of the application of the clause is relevant and in further support of our understanding that the current clause only applies to group 4 managers and above we wish to tender some more material.

PN487

Now, your Honour, I make the point that we tender this material because it arises out of ANZ's reply to our submission.

PN488

THE SENIOR DEPUTY PRESIDENT: Very well. Any objection?

PN489

MR PARRY: Well, I do object on the ground of relevance. I don't know what the - I only see the front page of the document I'm assuming it's an ANZ policy with regard to matters I can get instructions with regard to that. I don't object to the matter being marked at this stage noting that I do object on the grounds of relevance and noting that I haven't got detailed instructions with regard to its contents.

PN490

THE SENIOR DEPUTY PRESIDENT: Very well, I'll do that so that it can be taken and referred to.

PN491

MS MALONEY: Well, your Honour, can I address that question?

PN492

THE SENIOR DEPUTY PRESIDENT: Yes.

PN493

MS MALONEY: Because it's their own submission that states it if I take your Honour to paragraph 3 of exhibit P2. It reads as follows:

PN494

In the section under the heading character and purpose ...(reads)... nor accepted by the ANZ.

PN495

Then they go on to state:

PN496

The clause itself does not refer ...(reads)... not lower than level three.

PN497

So, your Honour, we say that they have raised the issue that it's not relevant and we're indicating in response to that further material to indicate that it is relevant and that's the basis on which I give the material.

PN498

THE SENIOR DEPUTY PRESIDENT: That's fine but it doesn't overcome the problem that Mr Parry has objected to it on relevance. I think the appropriate course is to mark the document the document will be in the Commission's hands the attitude of the parties to it will emerge as we move on in any event. So, I'll mark that exhibit N2i.

EXHIBIT #N2i EXTRACT FROM ANZ AUSTRALIAN POLICY VERSION OF JULY 1999

PN499

MS MALONEY: Your Honour, exhibit N2i is an extract from the ANZ Australian Policy version of July 1999 in respect to provisions that are contained in the ANZ award leave in lieu of travelling time, meal allowance, higher duties and allowance. If I can take your Honour to the third page in which is titled leave in lieu of travelling time general policy. I take your Honour down the page and you'll see there is a note the first note that you come to. Clause 31.2 of the ANZ Group Award deals with travelling time and this policy is basically ANZ's way of explaining to their staff how the clause applies. In group note it says; group four managers with TEC packaging and group three senior managers are not eligible for leave in lieu of travelling time.

PN500

Your Honour, travelling time is one of the visions that is excluded from applying to group four managers who are on TEC packaging under the current clause 6.2. If you go to not the next page but the page after titled meal allowance under the heading, employees - group 4 and above - meal allowance does not apply to employees of group 4 and above who have contracted to work 160 per week, as I call it, in exchange for the benefits. It also refers to group 4 managers on TEC. Once again, your Honour, that is another provision that doesn't apply to group 4 managers who are on TEC packaging, and if I take your Honour to the next section that deals with higher duties allowance. It is not the next page but the page after.

PN501

Your Honour, higher duty allowance, or higher duty payment is provided for in clause 18.3 of the award. This section, the policy is down the page about halfway through. It sets out to which employees higher duty payments can be made, and it states that - it refers to group 4 category AD, not on TEC packaging. Now, in terms of group 4 category A - E on TEC packaging, then it is a discretionary issue up to the discretion of management as opposed to an award entitlement. So, your Honour, we only put that material in further support of the material that we have already tendered in the section 99 notification matter to further support our understanding of how the current clause applies.

PN502

Your Honour, I would deal firstly with the issue of ambit, in terms of the ambit of dispute. Sir, we would submit that the proposed variation does fall within the ambit of the dispute, that from the basis of the original award. The application and the variation proposed do not deal with the regulation or limitation, or does not attach various restrictions on the application of TEC remuneration packaging as has been alleged by ANZ. What the application seeks to do, as I've previously stated, it seeks to maintain the integrity of the safety net value of the award. It seeks to do this by inserting necessary protections for level 3 managers who become disentitled from various award conditions by moving on to TEC. The application, we would submit, contains legitimate industrial descriptions.

PN503

Now, your Honour, we refer to the log of claims, which is contained in attachment 1 in our submissions. As that log in C number 32814 of 1991 forms the basis of the industrial dispute that underpins the current award, that log contains various provisions and we have referred to these in paragraph 8 of our submission. It contains provisions dealing with claim for salaries and states:

PN504

Employees shall be paid at the rate of ...(reads)... every year of service.

PN505

Claim 5, payment of salaries:

PN506

All salaries and allowances shall be paid weekly.

PN507

Claim 8, part time employees:

PN508

Part time employees ...(reads)... or positions occupied.

PN509

And we also state, it also refers to superannuation and vehicle allowance. Now, we say that the clause is not as alleged by ANZ, is not restricting the staff members to who TEC packaging can be offered. What the proposed variation is seeking to do is provide a method of remuneration for higher levels of staff. For example, your Honour, you could make an award that provides for senior executives to be paid $100,000 a year, although that is probably a bit low, but $100,000 a year and provide them with a car per year, and that can be the subject matter of an award, but that doesn't prevent the employer from offering the same amount and conditions to other employees. So, for example, we would have absolutely no objection if ANZ offered similar conditions such as that to the bank tellers.

PN510

What we say that the provision is seeking to do is to set up a remuneration level for class of employees. It is a method of payment and that is relevant and reasonably incidental to the settlement of the original dispute, particularly in respect to the claims contained in the log of claims relating to salaries and payment of salaries. Now, ANZ has said, as I've got them, that there is not a claim for salary packaging or TEC remuneration or packaging in the log of claim and that is correct, and that is why we stated that obviously if their argument was correct, your Honour, that this matter was not within the ambit of the original dispute, well, then as we point out in paragraph 12 of our submission it would have to follow that TEC generally would also not be within the ambit of the original dispute because total employment costs salary packaging is not specified in the log of claims underpinning the original award. As such, the current clause 6.2 of the award would not be valid. That is the logical follow on from the argument that ANZ has put.

PN511

Your Honour, we would say that the proposed variation that we are seeking are relevant and reasonable to the extent to the settlement of the industrial dispute in respect to salaries, payment of salary, part time employment, motor vehicle allowance and superannuation. It also seeks to compensate the level 3 managers for other conditions that they lose, for example, the loss of RDOs, the loss of the payment of overtime, and the loss of annual leave loading. Now, your Honour, all of those matters are clearly within the ambit of the original dispute.

PN512

So, your Honour, in further support of our submission that the proposed variation falls within the ambit, if I could put it this way. If a person moves on to TEC remuneration packaging, as we have said, that person becomes disentitled from certain conditions of employment and some of those, and I won't read the whole list, I'll just give examples. For example, your Honour, district allowance and higher duty payment, meal allowance, standby allowance. That is just an example, not exhaustive, just an example.

PN513

The process that is involved is moving one group of entitlements and putting in place another called, TEC remuneration packaging, but the question what is put in place, what is put in place is an issue of merit subject to allowability. Therefore, TEC is clearly and directly relevant to the entitlements that are removed. As such, we say that the application and the variation proposed are relevant, or reasonably incidental, or appropriate to the settlement of the original dispute, or has a natural irrational tendency to dispose of the question at issue.

PN514

Your Honour, if I could now go to the issue of allowable matters and, your Honour, I think the way I might address this, if I can because some of the arguments today were not original raised in their original submission. If I go through them I'll come back to what they have put today, if that is acceptable to your Honour?

PN515

THE SENIOR DEPUTY PRESIDENT: Very well.

PN516

MS MALONEY: Firstly we reject the submission of ANZ that the proposed clauses are not allowable under section 89(a)(ii) or 89(a)(vi). As has been pointed out by - and I don't intend to go through all this, I think we are all pretty clear on the decisions on allowability but it is quite clear from the decision of Vice President Ross that the subject matter award may be referrable to more than allowable matter and we set out in our submissions at paragraph 13 the various heads under which we believe that the application falls.

PN517

As we say in paragraph 16 of our submission, total employment cost is a salary package arrangement that gives a fixed value to the cost of employment. Mr Parry has taken you to an example of the individual contract, we took you to the policy, I don't think we are going to have a dispute about what comprises - how it is described but we include a copy of the policy at attachment 2 of our document which sets out the current - sorry, sets out the components of TEC packaging as of the policy of 1999.

PN518

If I can refer to ANZs reply firstly, P2, and I refer to paragraph 5. It is a bit unclear to me if they are still relying on their reply or what they put today but I would say they are relying on both. Firstly we say that despite what ANZ allege in their reply in P2 we say the FSU has not misconceived the substance of the clause. In determining the substance of the clause we do wish to refer to a recent decision of the Federal Court so I suppose I need to seek guidance as to whether I am going to have objections, it is a recent decision of Merkel J in the Electrolux Home Products - - -

PN519

THE SENIOR DEPUTY PRESIDENT: Only if you have copies, I can't see - - -

PN520

MS MALONEY: This is a recent decision obviously of last week of Merkel J dealing with - it was determining whether various union claims against the employer were claims pertaining to the relationship of employer and employees and as such whether they could be protected by protected industrial action and obviously it went to the issue of the bargaining fee which is not the reason I am raising it but that's obviously the issue it went to and also the issue of the payment into the fund to secure employees' entitlements if there is any future problems with the employer's solvency.

PN521

But the issue I take the Commission to - and if I could take your Honour to paragraph 21 because the substance here, Merkel J was looking at these various claims to ascertain whether they were matters pertaining to the relationship of the employer and the employee and in that process set out what is involved in terms of how a claim should be characterised. If I could refer the Commission to paragraph 21 where his Honour states:

PN522

The initial issue is whether the claims the unions were supporting or advancing ...(reads)... in which the claim is made.

PN523

His Honour then refers to the Shell case and goes on to say:

PN524

The claim is not to be construed as it were a document creating legal rights ...(reads)... pertains to that relationship.

PN525

I end the quote there. What we say in terms of the application that is before you is that what is central to this application, what is critical is that it seeks to make provisions for TEC remuneration packaging for higher classification staff members. We submit that the claim does come within the section 89(a) of the Act. The first point I wish to make there is this, we refer the Commission at paragraph 17 of our submission to the decision of Commissioner Holmes in the Health Services Union of Australia and the Warrnambool case and I refer to the extract from there where the Commissioner found that the issue of salary packaging was an allowable matter.

PN526

We also refer the Commission in paragraph 18 and we include in our material extracts from seven awards that have been made by the Commission in accordance with the award simplification requirements and these extracts contain provisions dealing with salary packaging and/or salary sacrifice arrangements. Actually one particularly if I take your Honour to page 6 of our submission the third dot point down, AW808650 is the award reference, RLM Systems Award 2000, it refers to clause 12 and actually refers to total employment cost, it call it TEC, as opposed to salary packaging or salary sacrificing which are other terms that are used in these awards.

PN527

The first point we say - and I am sorry if I am jumping - but in their reply submission at paragraph 5, ANZ suggest and I refer your Honour, they state:

PN528

Relying on a number of consent awards dealing with straightforward salary packaging arrangements do not make the proposed variations allowable.

PN529

The first point we say about that is that in terms of the extracts that we have provided there is no indication that those awards have been simplified by consent. However, even if they were simplified by consent we do not and could not rely on that because even if the parties to an award consent to the provisions of the new simplified award that consent does not necessarily make a provision allowable or non-allowable and I suppose I could give an example which probably has a little bit of currency in terms of ANZ and FSU at the moment. But for example, if the ANZ and FSU agreed to insert into the ANZ award a right of entry provision and if I was a betting person I probably would not put the odds on agreement being reached on that but if we agreed to insert into the award a right of entry provision as part of the award simplification process your Honour would have to say well, that's fine that you consent but it is not allowable.

PN530

So the issue is not that these - consent matters. The issue is, and I am not going to take your Honour through although I might come back to some of them but it is quite clear from paragraph 18 and attachment 3 to our material that this Commission has made awards dealing with what is termed salary sacrificing, salary packaging and the one case total employment cost.

PN531

We also refer to paragraph 20 of our submission and if I could take your Honour to section 4 of our folder? Which contains an extract from the Commonwealth Bank of Australia Employees Award 1999.

PN532

THE SENIOR DEPUTY PRESIDENT: Now attachment 4? We have got attachments 1, 2, and 3 and then they go into A, B.

PN533

MS MALONEY: Your Honour, they are after the alphabets.

PN534

THE SENIOR DEPUTY PRESIDENT: The alphabetical ones, are they? Yes, they are too.

PN535

MS MALONEY: Yes, sorry, your Honour.

PN536

THE SENIOR DEPUTY PRESIDENT: No, that was me not turning the page. Yes Ms Maloney?

PN537

MS MALONEY: This is an extract from the Commonwealth Bank of Australia Employees Award 1999, clause 8, exclusion from certain provisions of the award. Now, your Honour, if I take you to - I just want to make sure, your Honour - this award has been simplified and there is the print order. If I take your Honour to the clause itself - I am sorry, your Honour, these come from the internet - it is about the second last page in the decision.

PN538

THE SENIOR DEPUTY PRESIDENT: I have it.

PN539

MS MALONEY: Your Honour, this clause doesn't deal with salary packaging or TEC, but what the clause does set out is a process for the making of an agreement between the employer and the employee in respect to an alternate form of remuneration and employment conditions.

PN540

Now, that process includes firstly any acceptance by an employee of an offer made by the bank will be subject to a cool-off period of 14 days prior to implementation. The process is also subject to, and this is in 8.1.7:

PN541

Employees will not be worse off than they would have been under the award.

PN542

When I go through our proposed variation clause by clause as ANZ have done your will see, your Honour, that there are two provisions that we are seeking to include in our variation that are of a similar nature. Of course, obviously, we are talking to them in terms of staff moving on to TEC. So, your Honour, we not only rely on those provisions of a simplified award in respect to clauses dealing with salary packaging, TEC, or salary sacrificing, we also rely on the simplified award in the Commonwealth Bank in terms of nature provisions that have been held to be allowable.

PN543

Your Honour, if I can go to page 8 of our submission? Your Honour, it is our view that the components of the proposed variation fall within either section 89A(2) and/or section 89A(6). Your Honour, in terms of - and I note your Honour it probably would have helped today's proceedings if ANZ had more clearly stated the grounds on which they were objecting to these provisions.

PN544

Firstly, your Honour, we would say in respect to clause 6.2.1, in their submission or in P1 - 6.2.1. - ANZ stated that they say that was a significant restriction. Your Honour we reject that proposition. We say that 6.2.1 does no more than identify the relevant classes of employees to whom the provision should apply. We say it is not a restriction but a necessary protection for employees.

PN545

So, even in terms of the submission they put today, your Honour, which ANZ still characterise today as 6.2.1 being a restriction as to who can be offered TEC. We say in our submission, your Honour, that is not the correct characterisation of clause 6.2.1 and we clearly say that it is allowable and that it is a necessary protection for employees.

PN546

Now, your Honour, 6.3 and 6.4.1. In the primary submission - or the initial submission - P1, your Honour, ANZ stated that 6.3, and I will just read 6.3:

PN547

Acceptance of TEC remuneration packaging is purely voluntary and if a staff member declines the offer ...(reads)... will not be detrimentally affected if they choose not to accept a package.

PN548

6.4.1 reads:

PN549

A staff member is not and will not under any pressure or coercion to accept an offer of remunerations package and its associated conditions.

PN550

Now in P1, ANZ's first argument was that those two provisions were not allowable because they characterised them as statements of intent and desire. Of course such statements of intent were found to be non-allowable in the award simplification decision. The first point we say, your Honour, the provisions that we are seeking as we say in paragraph 23 of our submissions - the provisions that we are seeking in 6.3 and 6.4.1 are not the same provisions that were found to be non-allowable in the award simplification decision.

PN551

As we state at paragraph 23 which is page 8 of our submission, the provision that the Full Bench was dealing with in that matter was a provision that stated that:

PN552

The award had been developed over time with the input of the employers, union and employees to develop an industry providing high standards of hospitality, service, customer satisfaction and a reasonable and fair standard of wages and conditions for employers and employees in the industry.

PN553

The Full Bench in the ASD decision stated that such general statements which describe objectives or philosophies rather than establishing entitlements are generally speaking, non-allowable. There is no dispute that, that is the position in respect of those sorts of statements. However, your Honour, it is our submission that provisions that we are seeking in 6.3 and 6.4.1 are not of that nature.

PN554

As we say, in characterising the clause you need to look at what work the clause does and the proposed clauses that we are seeking to insert provides firstly, and very importantly, that the acceptance of TEC remuneration is purely voluntary. We have stated previously that this is a very important issue because moving onto that method of remuneration disentitles the staff member from certain safety and award conditions.

PN555

In terms of 6.4.1, that clause we say is also a necessary protection because TEC, and we tried to explain this as best we could in the submissions and material that we tendered in the section 99 notification. TEC remuneration packaging involves a completely different and financially complex method of remuneration. We say, your Honour, that these two provisions are clearly provisions that confer enforceable entitlements.

PN556

Now, your Honour, today in their submissions ANZ have now raised a second ground which was not put in their reply but they raise it today. Now they are saying that the provisions are not allowable because they are basically broad discrimination clauses or clauses designed to remove some form of discrimination or they are similar to the provisions that were found not to be allowable in the ASD regarding harsh, unjust and unreasonable dismissals.

PN557

We say that obviously ANZ has been trying to find some other arguments to try and oppose our provision. We reject the suggestion that it even falls into those discriminatory sorts of clauses. The provision is a very important protection because, and this obviously will go the issue of merit, but the provisions are very important protection for these reasons. It has come to our attention in the last few months that ANZ has changed their policy in terms of Group 4 managers.

PN558

ANZ are saying that for Group 4 managers it is no longer voluntary. Because people, once they go onto this remuneration packaging become disentitled to certain conditions, it is very important that before someone gives up those entitlements that they do that voluntarily and I am sure the decisions of this Commission, that you cannot contract out of your award.

PN559

THE SENIOR DEPUTY PRESIDENT: Does this not go to merit?

PN560

MS MALONEY: Yes, it does go to merit. What we are saying is that the provisions we are saying we are seeking, we say it clearly, are enforceable entitlements, that they are not the sort of general statements of philosophies that in the ASD were found to be not allowable and we do not believe it is correct to characterise them as discrimination clauses.

PN561

THE SENIOR DEPUTY PRESIDENT: That is 6.3 and 6.4.1?

PN562

MS MALONEY: Yes, we put them together.

PN563

THE SENIOR DEPUTY PRESIDENT: Yes, I think everybody is arguing them together.

PN564

MS MALONEY: I think ANZ put them together initially.

PN565

THE SENIOR DEPUTY PRESIDENT: I agree.

PN566

MS MALONEY: 6.4.2 we restate our submission that it is incidental and necessary for the effective operation of the award. It seems to be the submission of ANZ, a common thread that runs through their submissions on the issue of ambit and the issue of allowability, is that they say that this application is about the regulation, limitation or restrictions on how TEC is to apply and as we have said in our submissions on ambit and we said in our submissions on what this is about, that is not what this application is about. So we reject their submission that 6.4.2 is about seeking to regulate the terms and contents of TEC conditions.

PN567

In terms of 6.4.3 which states that:

PN568

Any acceptance by a staff member of an offer made by ANZ will be subject to a cooling off period of 14 days prior to implementation.

PN569

As we state in paragraph 26 of our submission, page 9, a similar clause is contained in clause 8.1.4 of the Commonwealth Bank of Australia Employee Award 1999 which I have taken the Commission to. As such we reject the ANZ submission that it is not allowable or incidental.

PN570

In 6.4.4, which provides for an opportunity for people to review their decision as to whether or not they have a package, we say that that is necessary for the effect of operation of the Award and we reject ANZ's submission that it is not incidental or necessary. In terms of 6.4.5, it clearly deals with part time staff and we say it is allowable pursuant to section 89A2(r) which deals with types of employment such as full time employment, casual employment, regular part time employment and shift work and is also incidental to the rates of pay generally because it talks about pro rata at the bases and necessary for the effective operation of the Award.

PN571

Now, 6.4.6. This provision which provides for if ANZ makes an offer of a level 3TC package to a staff member an offer of a package will also be made to all current incumbents of the position in the business unit at the same level. We say that this clause is similar to the provisions that are found at clause 13.8 of the Local Government Officers Western Australian Award 1999 which we refer to in paragraph of our submission and also clause 11.7 of the Local Government Officers City of Sterling Award 2000 which is referred to in paragraph 18 of our submission.

PN572

Those clauses have a provision stating that:

PN573

Where an employer has adopted a policy providing a salary sacrifice option to employees ...(reads)... through salary sacrifice.

PN574

We say this is a legitimate industrial description in terms of ensuring that employees are treated the same in terms of their employment conditions and we reject ANZ's characterisation of the clause as compelling ANZ to offer TEC.

PN575

We say it is not similar to the requirement to overtime but rather we say that the provision, as has already been shown in other award that have been simplified in the Commission, the provision is there to ensure that TEC packaging, in this case or salary options in the case of the Local Government awards I referred to, are not used to treat people differently. As such, we say it is quite allowable.

PN576

6.4.7 provides for at least four weeks prior to ANZ making new offers of packaging to any group of level 3 staff, ANZ will consult with the Union about the nature and time of the offer. Whilst I am sure a number of employers would probably interpret many decisions of the Commission regarding allowability, it is not correct to say that consultation is not allowable. That is not a correct statement and we take the Commission to paragraph 30 of our submission where it is quite clear in the decision of Senior Deputy President Marsh in the Metal Industry Award, print P9311, where at page 17 of her Honour's decision she states:

PN577

I have formed to view that in the context of the proposed award, a consultative ...(reads)... for the effective operation of the clause.

PN578

We also refer to the Award Simplification decision. I have a different copy to you.

PN579

THE SENIOR DEPUTY PRESIDENT: Well, you have quoted the extract you want, that is sufficient.

PN580

MS MALONEY: It is quite clear in that decision that the Full Bench rejected the proposition that had been put that there was no role for unions to be included in an award. We said:

PN581

It is our view that a role for unions may be included in awards consistent with ...(reads)... which involves a union.

PN582

Clearly, we say that consultation is an allowable matter. In terms of the nature of the clause that ends up at the end, that, we say, is an issue that goes to merit and as such we say that clause 6.4.7 is allowable.

PN583

In terms of 6.4.8, we reject ANZs submission that that is not incidental to the rates of pay and necessary for the effect or operation of the aware, we say it clearly is. 6.4.9, your Honour, I think we set out in paragraph 32, 6.4.9 seeks that ANZ will reimburse the cost of independent financial advice obtained by a staff member when first offered a remuneration package to the value of $300.

PN584

Now, your Honour, as I indicated to your Honour in PT2 which is ANZs reply which they had at least 10 days to prepare, there is the whole issue of allowable matters in terms of their reply to our submission, with the exception - excluding the issue of facilitative nature - facilitative argument and the ..... in jurisdiction, their whole reply to our submission in terms of section 89A(2) takes the whole of five lines.

PN585

Now, today, we have heard an additional argument as to why they say this clause is not allowable. Firstly, we say that the clause is allowable and we set out the relevant extracts from the CBOA case in which we say, it makes it clear that the reimbursement of the cost of independent - of reimbursement of costs, we say it is an allowable matter and in particular as Mr Parry took you to, the Full Bench stated - your Honour, I don't have your copy, so I refer to the quote in my submission, if I may:

PN586

Essentially the elements of such an allowance of those ...(reads)... are allowable aware matters.

PN587

And also I refer to the quote above. If I understand the argument that has been put by Mr Parry on behalf of ANZ today is that the characterisation of an allowance that the Full Bench refers to when they refer to the decision of Latham J in Mutual Acceptance Co Limited v Federal Commissioner of Taxation and they refer to that part of the - when the word is used in connection with the relation of employer and employee, it means in my opinion, a grant of something additional to ordinary wages for the purpose of meeting some particular requirement connected with the service rendered by the employee or as compensation for unusual conditions of that service.

PN588

Now, as I understand what ANZ have said today, they are saying that the reimbursement of the cost of independent financial advice for a staff member when first offered TEC is not a requirement or compensation for some unusual condition of service. Your Honour, it would be our submission that - we can't leave it, for example, in the ANZ award, don't have - if I can use the example, an allowance for dry cleaning. So, staff if they - they actually do have issued their uniforms and if they want to go and get those uniforms dry cleaned, we don't have any provision in the award that requires ANZ to make - to reimburse the costs of the dry cleaning. As such, there was no requirement on ANZ under the award to reimburse staff the cost of the dry cleaning. As there currently is no requirement under the award to reimburse a staff member or employee who has been offered TEC packaging, there is no requirement for ANZ to reimburse that person the cost of seeking independent financial advice.

PN589

If the Commission found that the application - there was no ..... jurisdiction in the application and subject to other meeting national wage case principles and the Commission got to the stage of dealing with merit and determined that the clause we seek was appropriate, then there would clearly be a requirement. We say, your Honour, it is clearly that the reimbursement of a cost is an allowance and that's been made quite clear in the CBOA case. The fact that it is not current a requirement is the fact that it is not in the award. We reject that characterisation of the CBOA case. The fact in the CBOA case, it was the make-up in terms of the accident pay. In terms of - so we say, that it does clearly come within the terminology or definition of allowances as set out by Latham J and as set out by the Full Bench in the CBOA case.

PN590

6.4.10, your Honour:

PN591

No staff member would be financially disadvantaged by moving to a TEC ..... package.

PN592

We say and we refer to paragraph 33 of our submission at page 11. First of all, we say that it is an important protection for employees. That it is incidental to the rates of pay generally, that is 89A(2)(c). We also say that the proposed clause provides a form of a safety net and that this is consistent with section 88A(b) of the Workplace Relations Act which provides that awards act as a safety net of fair minimum wages and conditions of employment.

PN593

Your Honour, we also in this support, refer to the awards - extracts of awards that we have set out in attachment 3 and those awards which are listed there in paragraph 33 and I don't intend them but those awards contain provisions that are similar, not the same, to the clause that we are seeking and those awards contain provisions that the terms and conditions of salary package or remuneration packaging by way of salary sacrifice shall not, when viewed objectively, be less favourable than the entitlements otherwise available on the award. It is the not the same and we are not saying it is the same but the principle basically is that people should not be disadvantaged. We reject the submission that has been put by ANZ that it is discriminatory. We see no basis at all for this clause to be indiscriminatory.

PN594

In terms of 6.4.11, once again we reject ANZs characterisation of this clause which they say seek to regulate TEC and therefore not allowable. We say the clause is allowable pursuant to section 89A(2)(c), rates of pay generally and 89A(2)(j), allowances. The new provisions deals with rates of pay and also seeks to compensate employees for RDOs, overtime and annual leave loading. It also seeks to compensate employees for the loss of the staff members concessional lending. Now, as your Honour can see in paragraph 6.4.11c of our draft order, we don't specify an amount for that compensation but we say that that is not fatal to our draft order because as held in the CBOA case, the fact that there is no quantified amount expressly stated, does not preclude it from being an allowance, so we say it is consistent with the Full Bench decision in that matter.

PN595

Your Honour, in conclusion on the actual draft order, we would submit that the provisions within the application to vary are allowable, and/or are incidental to matters and necessary for the effect of operation of the award.

PN596

Your Honour, in terms of the next part of our submission that is characterised as a facilitative provision, and I don't intend to go - but in their reply submission of P(2) in paragraph 6, ANZ state that:

PN597

The suggestion that the clauses are of a facilitative nature again on analysis the clause is not of that nature.

PN598

Your Honour, that didn't exactly enlighten me as to why in that they didn't explain the basis of the contention that their clause was not of a facilitative nature. However, today they have advised your Honour their argument is that once again they characterise it as a set of restrictions on how TEC can be offered. Also they argued that it doesn't comply or follow the definition of facilitative clause as set out in the September 1994 Full Bench decision Safety Net Adjustment and Review decision.

PN599

The Full Bench decision, your Honour, and I refer to paragraph 36 of our submission, clearly sets out what a definition of facilitative provision is, and that definition was further adopted by the Full Bench in the Award Simplification decision. Basically a facilitative provision is where it provides as the Full Bench says:

PN600

For the standard of approach in reward to be departed from by agreement between the individual employer and employee or the majority of employees in the enterprise.

PN601

So where an award clause contains that provision and refers to the standard award condition and the framework in which the agreement can be reached as to how this particular clause should be applied in practice.

PN602

Your Honour, our additional alternate argument is that the clause is a facilitative provision because the standard approach in the award is the award and all the provisions in the award. If a staff member is offered and accepts TEC packaging, they move away from that standard and come under a different framework. So, it's therefore a case of they move away from the standard approach by becoming disentitled to various award conditions. So we don't accept the submission of ANZ that the provision or the application to vary isn't consistent with such a definition of a facilitative provision. But I don't go any further on that matter.

PN603

Can I just say, in terms of allowability and jurisdiction, and I refer to page 13 of our submission, paragraph 40. We say in the alternative, that if the Commission finds that the provisions contained in the application are not allowable award matters, pursuant to section 89A(2) or incidental necessary award provisions pursuant to section 89A(6), we would submit that this would not remove it from the jurisdiction of the Commission and refer the Commission to the Metals print S1931, which has been handed up today.

PN604

Your Honour, we want to clarify one point. In their reply submission, and maybe it doesn't need, but as you can appreciate, your Honour, we were looking at their reply submission. At paragraph 7 of their reply, ANZ state:

PN605

Under the heading allowability and jurisdiction the FSU refers to section 89A(4). This is not relied on by the ANZ.

PN606

If I can just refer to S1931. The Metals jurisdictional print S1931. Your Honour, we say that in terms of the reply submission, it was our view that ANZ have wrongly construed the observations that were made by the Full Bench.

PN607

If I could take your Honour firstly to paragraph 13 and 14. Is yours paragraphed?

PN608

THE SENIOR DEPUTY PRESIDENT: Mine is paragraphed, but 13 has disappeared as a number. I don't know that the text has.

PN609

MS MALONEY: Your Honour is that the end. "AIG and Commonwealth submissions"?

PN610

THE SENIOR DEPUTY PRESIDENT: Yes, I see that.

PN611

MS MALONEY: Your Honour, I will only take you to these paragraphs. Firstly, in this matter, the AIG submitted that the right to convert casuals to permanent employment after four weeks service would offend subsection 89A(4). From what I can see that was the basis of their submission. But in paragraph 14, the Commonwealth submitted that:

PN612

A right to convert a casual employment to permanent employment is not capable of being an allowable award matter. It would be difficult to characterise any such right as an incident of casual employment.

PN613

Then I also go on to 143(1)(b) regarding the process in terms of what can be contained in the award.

PN614

If I take the Commission over to paragraph 33, the one we quote in our submission, but if you've got the - - -

PN615

THE SENIOR DEPUTY PRESIDENT: Yes, I have 33.

PN616

MS MALONEY: The point we say is that the Full Bench's comments in paragraph 33 just don't go to 89A(4). They go to the issue of allowability generally, because their comments go to the submissions of both the AIG which was basically the application of 89A(4) and the submissions of the Commonwealth, which were broader than 89A(4). So their comments go to both those areas and they say:

PN617

Points made by the AIG and the Commonwealth as part of the allowable award matters argument are concerned more with merits than with jurisdiction ...(reads)... no substance in the Commonwealth's reliance on subsection 143(1)(b) as a jurisdictional point.

PN618

What we say, your Honour, is that the Full Bench's comments weren't just limited to section 89A(4) and I think in part, but I won't put words into their mouths, I think that's partly accepted, because ANZ today have indicated that they've made their submission on the draft order as it currently is, which is acceptable, but we've also made the point that if the Commission was of the view that any or all of the claims were outside section 89A, then that does not create a jurisdictional barrier because subject to determining the merits of the application their varied provisions can be altered or moulded - is a word we use, which ANZ refer to - to conform with requirements or section 89A.

PN619

So the points we are saying is firstly, the provisions as they currently stand do come within the allowable matters, but secondly, if the Commission is of the view that any one of them or all of them were not within allowable matters, we say that that does not act as a bar to jurisdiction and we rely on the Full Bench decision in the Metals Casuals case. Thirdly, we say that if subject to merits there is opportunities for the Commission to - as we say the Commission is not limited to relief that may be sought in the application.

PN620

So in respect to minimum rates award we note in their reply submission at paragraph 8 that ANZ accepts that this element may well become relevant again if and when the merits of the matter come to be determined. In relation to the minimum rates award issue we rely on our submissions of 2 November, as set out in paragraphs 42 to 47 of our submission and we say that in their reply submission ANZ have acceded to our submission that their submission on the application of 89A(3) may be premature in that the issue of determining whether clause 6.4.11 makes the award something other than a minimum rates award, involves a claim, is something to be considered in the context of the merits of the case.

PN621

Now, your Honour, I come to the last area. Firstly, can I just take your Honour to ANZ's submission in P1? I take your Honour to paragraphs 46, 47 and 48, page 11 of their P1. In their submission of 12 October ANZ contended, and it's set out in paragraphs 46 to 48 of that page, that the issue of TEC remuneration packaging is a matter that is dealt with in both the award and the ANZ FSU Agreement (1998). Clause 6 of the award and clause 7.6 of the agreement makes provision for TEC remuneration packaging. In paragraph 47 they assert:

PN622

It is submitted that whilst the particular variation proposed by the union in march 2001 was withdrawn, the thorough review of the award and agreement have not been withdrawn.

PN623

They refer your Honour to the Full Bench decision in the Queensland Mining matter. In paragraph 48 they assert that:

PN624

It's submitted that by reason of the claim for thorough review made by the union and the people...(reads)...nor has the matter been resolved.

PN625

Then they submit that section 170N fetters the Commission's power to arbitrate and paragraph 50 says that reliance has to be made on the bargaining period notice because that's the instrument that's relied on to actually define the parties as negotiating parties. Your Honour, it was in response to those submissions that we made our submissions. Today we have ANZ standing up before your Honour saying that - - -

PN626

THE SENIOR DEPUTY PRESIDENT: Well they are still saying that.

PN627

MS MALONEY: Well, your Honour, they are not saying that. Today they are saying they are relying on, if I can take your Honour to it, paragraph 1 of the notice of initiation bargaining period, salaries and remuneration matters. Now, your Honour, we will address both because we believe that their submissions in respect to both are incorrect. However it is of concern tat what was put today in our view is not the same as what was put in their primary submission.

PN628

THE SENIOR DEPUTY PRESIDENT: Well in principle it certainly is. It comes down to the submission that, as paragraph 50 says, the only way to remove an issue from the bargaining period protection is to withdraw the bargaining notice.

PN629

MS MALONEY: Yes, your Honour, but in terms of what they are relying upon as being the matter at issue.

PN630

THE SENIOR DEPUTY PRESIDENT: Yes.

PN631

MS MALONEY: The matter they refer to being at issue was what they called the thorough review of the award.

PN632

THE SENIOR DEPUTY PRESIDENT: Yes, quite.

PN633

MS MALONEY: They refer to the claim that was tabled on 13 February and actually it's part of their exhibits. It's part of their exhibits in this case. So what we are saying is that while I'm not disputing paragraph 50, I'm saying what the basis, what they are relying upon in their argument, that section 170N precludes you from arbitrating on this matter, is a different issue to what they are relying on today in terms - - -

PN634

THE SENIOR DEPUTY PRESIDENT: A different item.

PN635

MS MALONEY: Well it's a different basis, your Honour. They are referring to a different document.

PN636

THE SENIOR DEPUTY PRESIDENT: Yes, that's right, but that doesn't alter the principle.

PN637

MS MALONEY: Well, your Honour, we say that it's a bit of a - we have got concern in terms of the process that is being carried out in terms of they - directions were issued by your Honour for them to put their submissions in. As your Honour knows, they had an extension which we had no objection to whatsoever and then today they come along and rather than rely on what they originally put in and which we were to respond to, we hear another argument today. But, your Honour, I don't take it any further than that because we do intend to address the issues today.

PN638

But can we say this? That what we say, and I think we can put it quite clearly, is this. We refer to paragraphs 50 to 57 of our submission. In respect to their reply of the 9th and now today and which they have put an additional issue because theirs no - in their reply of the 9th, your Honour - sorry, not the 9th, P2 and we refer to point 9, paragraph 9 of their response. They raise three issues in their response. Firstly, the statement that a party cannot dictate what is a matter that is at issue between negotiating parties.

PN639

Secondly, the reject our submission that ANZ has failed to bargain with faith and of course today have now put a further submission which wasn't clear in their reply, but a further submission that the test applied by Commissioner Smith and referred to by your Honour was not relevant to section 170N. The third thing they say, they refer to assertions or negotiations had on 18 April 2001. Your Honour, I intend to address each of those points, but bearing in mind the first we heard about the challenge to the test applied by Commissioner Smith was today.

PN640

Your Honour, it is our view and we put it right up front and we refer to the two decisions. Your Honour, we refer to, in terms of whether the matter is at issue between negotiating parties and in paragraph 51 of our submission we refer to what your Honour referred to in your decision in the NTU Teachers English Language Centres of Australian Universities Conditions of Employment Award (1998), print S8837, which Mr Parry has tendered today.

PN641

In that decision at page 2 your Honour agrees with the submission of the NTU that there are two limbs to the section, that's section 170N, there must be a bargaining period in existence and the matter must be an issue between the negotiating parties. It is our strong view, and we totally reject the submission that has been put by ANZ today, that the test that was applied by Commissioner Smith in the NTU matter and those observations as endorsed by your Honour in Teachers English Language Centre of Australia Universities Conditions of Employment Award it is our submission that those tests are correct that bargaining in good faith is a relevant issue and that those matters, which we do go to, are relevant to this issue.

PN642

However, in the first instance we say that as pointed out in Commissioner Smith's decision in print S7058 there can be little doubt that where a subject matter is included in a bargaining notice prima facie the matter is an issue between the parties. Similarly I hold the view that where a responsible bargaining notice is put a matter on the table for bargaining the Act also can put a matter at issue between the parties.

PN643

Now, your Honour, the Commissioner went on to say:

PN644

In my view whether or not a matter is an issue would depend upon the ...(reads)... and bargain in good faith.

PN645

The first thing we say is this. We clearly say that the subject matter of imposed variation is not a matter that is an issue between the negotiating parties. The claim to vary clause 6.2 of the award which we tabled on 28 March 2001, that claim was withdrawn by the Finance Sector Union on 27 April 2001. There is no dispute. It's clear in the material that's been tendered by the ANZ. it is also clear from that material that we withdrew the claim to vary the award in respect to prenatal leave, parental leave and long service leave. They were withdrawn as ANZ had clearly pointed out those divisions in terms of those leave provisions could be dealt with in terms of the enterprise agreement.

PN646

Now, the notice of the initiation of bargaining period was lodged by the FSU on 1 May 2001 and that's contained in attachment 1 or annexure 1 to the ANZ submission. We say it's quite categorically clear from the notice that the issue of total employment cost remuneration packaging for level 3 managers is not a subject matter that is included in the bargaining notice.

PN647

We reject the submission that the issue of salaries and remuneration matters, which is contained in paragraph 4.1 of the notice of initiation of bargain period or any other matters contained in paragraph 4 of the notice of initiation of bargain period encompassed the issue of TC packaging for level 3 managers.

PN648

So our first submission is we say the ANZ cannot even on a prima facie basis establish that this issue is a matter that's an issue between the bargaining parties. That is we rely on the fact that they were specifically made and then withdrew a claim for variation of clause 6.2 and there was no other issues on the negotiation table regarding the award.

PN649

On the basis that perhaps they go back for another bite, to further demonstrate that that issue was not an issue between the negotiation parties, we wish to tender one document. This is a document that was prepared by ANZ, tabled on 16 May but it was during the course of negotiations it was an attempt to try and set out where we were at in terms of various items. So it's a status document, and that is its title, Status at 16 May 1. It basically sets out the area, the issue, who put it, which side, and the status where it was at.

PN650

At page 4 of this document from the third box from the bottom is title Award Review, FSU.

PN651

Parties have agreed that changes are to be effected through the enterprise agreement and not the award.

PN652

Now, that was quite clear then as it was arising from the fact that we withdrew our claim to vary the award and I refer to annexure D to the ANZ submission which contains the letter to Christopher Baker the head of Work Place Strategy, ANZ, from Tony Beck, national secretary of the FSU dated 27 April 2001.

PN653

We wish to advise that we formally ...(reads)... as opposed to the award.

PN654

So the claim was withdrawn and as its recognised in ANZ's own document it was agreed between the parties that changes are to be effected through the enterprise agreement and not the award.

PN655

THE SENIOR DEPUTY PRESIDENT: Do you have any objection, Mr Parry?

PN656

MR PARRY: I can get instructions of what the words of the document is, what it appears to be, so it's a little unusual to tender negotiating documents between the parties but I'll get instructions on whether it is what it appears to be.

PN657

THE SENIOR DEPUTY PRESIDENT: And then have a final position.

PN658

MR PARRY: Yes, I think from what I've heard at this stage could it be marked confidential as well?

PN659

THE SENIOR DEPUTY PRESIDENT: Yes, accept it as a tender but marked as confidential?

PN660

MR PARRY: Yes, it is a document which sets out negotiating positions of the parties as of 16 May. I would ask that it be marked confidential at this stage.

PN661

THE SENIOR DEPUTY PRESIDENT: Very well.

PN662

MS MALONEY: Well, your Honour, if that document is going to be marked confidential then we would ask that annexure B, annexure C be also marked confidential because they are documents that were tendered by the FSU on a without prejudice basis. Now, we haven't called up that - - -

PN663

THE SENIOR DEPUTY PRESIDENT: Where are they, Ms Maloney?

PN664

MS MALONEY: It's annexure B to the ANZ submission.

PN665

THE SENIOR DEPUTY PRESIDENT: Well, if they are what you say they are I have no difficulty in marking them as confidential as well.

PN666

MS MALONEY: Thank you, your Honour, and annexure C.

PN667

THE SENIOR DEPUTY PRESIDENT: Yes, B and C. I direct that annexures B and C to the written outline of submissions lodged by the ANZ and marked P1 be treated as confidential and I also make the same direction in relation to the document entitled Copy of ANZ document titled EBA2001, issues, framework, status as at 16 May 2001, it's marked exhibit M3.

EXHIBIT #M3 ANNEXURES B AND C TO WRITTEN OUTLINE OF SUBMISSIONS BY ANZ MARKED P1 AS CONFIDENTIAL. DOCUMENT ENTITLED COPY OF ANZ DOCUMENT TITLED EBA2001, DATED 16/05/2001 AS CONFIDENTIAL

PN668

MS MALONEY: We say this, and we say it quite clearly whether ANZ is relying on what we say they categorise the review of the award or agreement argument as they put in their submission of P1, or whether in addition they're also relying on remuneration in terms of the notice of the bargaining period. What we say is this. We say that there is no identity of issues in the matters contained in the notice of bargaining period and those matters contained in the application to vary. There is a very very simple reason for that.

PN669

We explain that reason, if I refer your Honour to paragraph 53E of our submission. That reason being, that the subject matter of the application that's before you today, arose from action taken by ANZ in July 2001, namely the bank offering TEC remuneration packaging and associated individual employment agreement to level 3 managers.

PN670

In this regard, we refer to the notification of the alleged industrial dispute in C No 2001/4327, and the submissions and documentary material that we submitted before your Honour in proceedings on 15 August 2001. Your Honour, I don't know if you have got that material there. I did want, I'm not sure if ANZ has got the material there pertaining to that matter, they did refer you to an exhibit of ours in that matter - - -

PN671

THE SENIOR DEPUTY PRESIDENT: Yes, they did, that's true.

PN672

MS MALONEY: If Mr Parry doesn't objection, I was going to tender a copy of the correspondence that accompanied that section 99 notification, addressed to the Industrial Registrar.

PN673

THE SENIOR DEPUTY PRESIDENT: You are re-tendering it, in any event?

PN674

MS MALONEY: Yes, your Honour. It would be in the files, I would say, because it went with the notification.

PN675

THE SENIOR DEPUTY PRESIDENT: This is the notification of the earlier dispute?

PN676

MS MALONEY: Yes, that's right, your Honour. So it would be on the files, but I'm not sure everyone has got their files here today.

PN677

THE SENIOR DEPUTY PRESIDENT: I do have the file, but it will be quicker to mark it than to go looking in the file.

PN678

MS MALONEY: Yes.

PN679

THE SENIOR DEPUTY PRESIDENT: You have no objection, Mr Parry, have you?

PN680

MR PARRY: No, I don't, your Honour.

PN681

THE SENIOR DEPUTY PRESIDENT: The copy of correspondence to the Industrial Registrar, dated 10 August 2001, re 2001/4327, exhibit M4.

EXHIBIT #M4 COPY OF CORRESPONDENCE TO THE INDUSTRIAL REGISTRAR, RE 2001/4327, DATED 10/08/2001

PN682

MS MALONEY: Your Honour, that is a copy of the correspondence addressed to Peter Richards, Industrial Registrar, Australian Industrial Registry, signed by Tony Beck, the national secretary of the Finance Sector Union, dated 10 August 2001, and that accompanied the notification of the alleged industrial dispute in C No 4327 of 2001. I refer your Honour to paragraph 5, or point 5 I should say. As you notice, your Honour, that letter we sought an urgent listing of the section 99 notification, and in point 5 we advised that when the section 99 notification is listed before the Commission, the FSU will be seeking a recommendation order from the Commission.

PN683

I am sorry, your Honour, I retract that your Honour. Point 4, I take you to. Point 4:

PN684

It is the FSUs intention to lodge an application to vary ...(reads)... conditions of employment.

PN685

We also refer, your Honour, to the transcript of the proceedings of that day. I have an extract from that transcript, if I could tender that.

PN686

THE SENIOR DEPUTY PRESIDENT: Unless there is any objection, I'll mark the extract of transcript exhibit M5.

EXHIBIT #M5 EXTRACT OF TRANSCRIPT OF PROCEEDINGS DATED 15/08/2001

PN687
MS MALONEY: Your Honour, this is an extract from the transcript of 15 August 2001, which is when the section 99 was listed before you in Sydney, and if I take your Honour to PN148, which is the first page in, and it is where I advised your Honour, in PN148. I quote:

PN688

As I foreshadowed in a letter to the Registrar ...(reads)... by next Monday.

PN689

As your Honour was aware, the FSU subsequently filed and served a section 113 application to vary the award in respect to the inclusion of protections for the level 3 managers, moving on to TEC packaging. This application was listed for mention before your Honour in Melbourne on 23 August 2001, and of course since then it has been subject to programming and of course subject to these proceedings. What we say quite clearly is that the matters contained in our application to vary could not have been contained in the notice of the bargaining period that was lodged on 1 May 2001.

PN690

Your Honour, I wish to finally address the argument, the point that ANZ has put as to the issue of bargaining in good faith, and also the Full Bench decision. In respect to the Full Bench decision regarding the CFMEU matter, we accept that decision in that case, as Mr Parry pointed out, the CFMEU had a claim for a reduction in hands, obviously an ongoing dispute in the mining industry, and it was quite clear in that decision that the matter at issue, the subject matter, that is reduction of hands was an issue that was clearly in dispute between the CFMEU and the company.

PN691

We say that in terms of this matter that's before you, as are other matters that have come before this Commission, that in that Full Bench matter, basically it involved looking at the applications of section 170N to a relatively simple set of circumstances. Basically, the CFMEU had a claim for a reduction in hands. There was no dispute about it. As your Honour is probably well aware, it's been an issue for quite some time in the industry.

PN692

Your Honour, we say that in terms of the matter that's before you, that the circumstances and the factual circumstances of the matter that's before you is the basis upon which the matter should be looked at, and that the issue in terms of looking at what has transpired between the parties is relevant, and we say that the issue of bargaining in good faith, as put by Commissioner Smith, and those observations as adopted by your Honour, is also applicable.

PN693

So what we say, firstly, in terms of the Full Bench decision, it was applying to a relatively straightforward set of circumstances, and that it's not a case of just transposing what happened there to here, because obviously it's not a case of, there's no clear identify of issues between the bargaining notice and what we put here. Secondly, we have referred the Commission to we would say that the tests that were put by Commissioner Smith, and in that regard I refer the Commission to - and I am jumping back a bit, your Honour - - -

PN694

THE SENIOR DEPUTY PRESIDENT: They are set out in your submission, aren't they?

PN695

MS MALONEY: They are set out in our submission, at paragraph 52, and we set them out clearly, and then we refer to the observations that your Honour made, endorsing them in your decision regarding the English Centres matter. Now, in their submission of today, ANZ are saying that Commissioner Smith fell into error and that section 170N does not require the parties to bargain in good faith, even suggesting that if the employer does not respond to a notice of bargaining period, it does not mean that the matter is not at issue, which finds it bit hard if you put a notice of a bargaining period in place and the employer refuses to respond and refuses to negotiate with you, but the matter is still at issue.

PN696

Your Honour, we totally reject that submission. We not only rely on the decision of Commissioner Smith, and the observations as endorsed by yourself, your Honour, we also refer to - and I would have had the decision here, but I wasn't aware that this argument was going to be put, but I can obviously provide it - I refer your Honour to a decision of Munro J.

PN697

In the Qantas Airways Limited and another and AMWU dated 8 March 2000, print S5768. Your Honour, I have only got one copy of it. But his Honour in that matter was dealing with an application to vary the award to include the terms of Qantas. It was a section 99 application by Qantas and the Force Staff Pty Limited. It was dealing with the issue of 170N. Your Honour, I will refer to what I refer and then I can provide copies of the print. In that matter, your Honour, his Honour was referring to section 170N of the Act and was also referring to the Full Bench decision in terms of the CFMEU matter and was stating that in terms of this Qantas issue there was more complex circumstances have arisen.

PN698

His Honour goes on to state and I will quote and then I will show Mr Parry;

PN699

MR PARRY: I have got a copy.

PN700

MS MALONEY: Sorry, your Honour, it is just that my copy hasn't got paragraphs but I will identify the paragraph for you. I am referring to paragraph 14. About halfway down talks about:

PN701

An examination of whether there is sufficient ...(reads)... to which I was referred.

PN702

I leave it there. Therefore in terms of the decision of Commissioner Smith in terms of looking at the factual circumstances of the matter, in terms of not just looking at the notice of the bargaining period, but also what has transpired between the negotiating parties. We say this is relevant issues in terms of determining whether a matter is at issue between the negotiating parties. In that respect, your Honour, we refer to that section of Commissioner Smith's decision and I refer your Honour to paragraph 55 of our submission where his Honour states in his decision:

PN703

To the extent that the exercise of ...(reads)... in good faith.

PN704

Now, your Honour, we submit and we made it clear in our submission that ANZ have not bargained in good faith. They in their reply they strongly dispute that they have failed to bargain in good faith. We say it is a relevant issue and we have included in our material correspondence in terms of 20 June 2001. As we outline in paragraph 55 of our submission, on 20 June, 2001 ANZ ceased enterprise bargaining negotiations and advised the union that it no longer believes a new agreement was necessary. Our copy of that letter is contained in attachment 5 and I will take you to attachment 5 to our submissions, your Honour.

PN705

That is a letter to Mr Beck from Mr Baker dated 20 June, 2001. The opening paragraph:

PN706

As you will by now be aware negotiations between ANZ and the FSU for a new enterprise agreement concluded unsuccessfully today.

PN707

They go on about what happened over the last four months.

PN708

Unable to resolve our differences.

PN709

I take your Honour to the fourth paragraph which starts with:

PN710

Accordingly, ANZ has determined that we will make our eligible group 5 and 6 employees a fair and competitive increase of 4 per cent for the next 12 months effective from 13 July. ...(reads)... will earn 5 per cent.

PN711

Your Honour, the FSU responded to that correspondence and a copy of our response is contained in attachment 6. That is a letter addressed to Christopher Baker from Tony Beck dated 28 June, 2001. Re Enterprise Bargaining negotiations, referring to their correspondence of 20 June, 2001 and a meeting of the same date.

PN712

First we advise that we are extremely concerned at ANZs ...(reads)... in good faith.

PN713

We then set out what issues of our members were failed to be addressed by ANZ ceasing negotiations and that all staff members of ANZ deserve and are entitled to a new union negotiated collective enterprise agreement. Then we go on to refer to the discussions that had taken place over the last few months and at the last paragraph we state:

PN714

The FSU remains committed to generally negotiating in good faith a new enterprise agreement.

PN715

Your Honour, as we state in paragraph 56 of our submission at page 20, in September 2001 the union made another representation to ANZ for the resumption of genuine negotiations but this was also rejected by the bank with ANZ setting down what could only be described as unreasonable pre-conditions. At this point I wish to tender two pieces of correspondence. This correspondence is referred to in paragraph 56 of our submission.

PN716

THE SENIOR DEPUTY PRESIDENT: I see, it is the representation for the resumption of negotiations. Any objection, Mr Parry?

PN717

MR PARRY: No, your Honour.

PN718

THE SENIOR DEPUTY PRESIDENT: The correspondence, which is first?

PN719

MS MALONEY: Sorry, the first one is the copy of correspondence from Tony Beck, National Secretary of the FSU to Shane Freeman, General Manager.

PN720

THE SENIOR DEPUTY PRESIDENT: I will mark that exhibit M6.

EXHIBIT #M6 COPY OF CORRESPONDENCE FROM TONY BECK, NATIONAL SECRETARY OF THE FSU TO SHANE FREEMAN, GENERAL MANAGER.

PN721

THE SENIOR DEPUTY PRESIDENT: The copy of a letter from Christopher Baker, Head of Workplace Strategy ANZ to Mr Beck, exhibit M7.

EXHIBIT #M7 COPY OF LETTER FROM CHRISTOPHER BAKER HEAD OF WORKPLACE STRATEGY ANZ TO MR BECK.

PN722

MS MALONEY: Your Honour, if I can refer to exhibit M6. It is a copy of correspondence from Mr Beck, National Secretary of the Finance Sector Union to Mr Shane Freeman, Group General Manager, People Capital, ANZ Banking Group Limited. It is dated 27 September, 2001:

PN723

Re Enterprise Bargaining. Further to my recent telephone contact I am writing on behalf of our members ...(reads)... achieve meaningful results.

PN724

Then it goes on to negotiations stalled in June, then goes on to refer to :

PN725

We are committed to seeking resumption of ...(reads)... response.

PN726

Exhibit M7 is a copy of a letter from Christopher Baker, Head of Workplace Strategy, ANZ to Mr Beck dated 11 October 2001 referring to our letter of 27 September. In that letter and I don't intend to read the whole letter, ANZ - and I take the Commission to the second page of the letter where it starts:

PN727

Given the above the experience of our unsuccessful negotiations early in the year ...(reads)... if there is any uncertainty.

PN728

Your Honour, it is quite clear in our submission from the response that we received from ANZ that they placed unreasonable pre-conditions to any resumption of negotiations. We say this and their action of June clearly demonstrates that they are refusing to bargain in good faith. The concept of bargaining in good faith obviously is probably a concept that is - well, probably has more of a history in the United States than it has in Australia but it has become a concept over the last, I suppose, five or six years particularly in terms of the industrial relations system moving towards enterprise bargaining but it is quite clear for one point and we say this in terms of the letter - or one of the conditions that ANZ has put in their letter - it is quite clear that engagement in protected industrial action which the FSU and its members has done in the course of negotiations, it is quite clear from the case law that the engagement in protected industrial action in the course of negotiations for the certified agreement is not necessarily at odds with the obligation to bargain in good faith.

PN729

It also has been held by the Commission and I refer to print - I don't have copies, your Honour, but it is regarding print M9940, an application by the Australian Nursing Federation and Another to vary a number of nursing awards, 13 March 1996, a full bench decision and the ANF had obviously made a number of claims on the employer and then as part of their claim they had emphasised at the outset that the ANF will not enter into any discussions on the basis of a negative cost-cutting approach that erodes existing award entitlements, staffing levels or levels of service delivery in return for the salary increase claims, that was one of the initial claims that was put by the ANF on these various employers.

PN730

The full bench held in that matter in terms of determining whether the ANF would bargain in good faith that because the ANF was refusing to engage in negotiations unless the employer's proposal contained no trade-offs, they not only held that that was clearly in conflict with the Commission's decisions regarding structural efficiency and enterprise bargaining principle but it was also in conflict with the concept of bargaining in good faith and that is the ANF put an unreasonable pre-condition to the bargaining occurring.

PN731

We say that in terms of what has transpired between ourselves and the ANZ similar unreasonable pre-conditions and as has been shown by that last piece of correspondent, exhibit MC, has been placed on the table by ANZ in terms of negotiations. So clearly your Honour we are in a situation where we say that ANZ have not participated actively in the deliberations in terms of enterprise bargaining, they have ceased the bargaining process, they have made it quite clear in their correspondence that they see no need for a new enterprise agreement and that was contained in attachment 5, the last paragraph of attachment 5. The letter of 20 June 2001 to Tony Beck from Christopher Baker:

PN732

ANZ no longer believes a new agreement is necessary.

PN733

We say that ANZ from the correspondence and their actions clearly are not and have not been bargaining in good faith. There is one more point I wish to raise and it arises out of their reply submission, if I take your Honour to paragraph 9 of P2. In that paragraph ANZ dispute what we put in that paragraph 54(3) of our submission - I am sorry your Honour, we are jumping over the page but 54(3) is at page 20 of our submission and I just put this in terms of ensuring that the correct facts are before the Commission. When we set out what the circumstances of the enterprise bargaining negotiations have been, etcetera, we say at 54(3):

PN734

Whilst we acknowledge that the issue of TEC remuneration packaging is a matter ...(reads)... in good faith on even this issue.

PN735

In paragraph 9 of their reply ANZ state - refer to - in paragraph 54(3):

PN736

Certain assertions are made about negotiations held on 18 April 2001 ...(reads)... and not an award review.

PN737

Over the page:

PN738

The award is a minimum rates award and the terms and conditions therein ...(reads)... meaning of that clause was clear and unambiguous.

PN739

That is factually incorrect. Those points that were made by ANZ were not made at a meeting held on 18 April 2001, those points - the issue of the award review was dealt with at the enterprise bargaining negotiations held on 9 April 2001 and I wish to tender two documents to support that.

PN740

THE SENIOR DEPUTY PRESIDENT: Any objection Mr Parry?

PN741

MR PARRY: No, your Honour.

PN742

THE SENIOR DEPUTY PRESIDENT: Copy of the agenda for the ANZ FSU enterprise bargaining meeting held on 9 April 2001 I'll mark exhibit M8.

EXHIBIT #M8 COPY OF AGENDA FOR ANZ FSU ENTERPRISE BARGAINING MEETING HELD ON 9/4/2001

PN743

THE SENIOR DEPUTY PRESIDENT: Copy of FSUs summary of notes of enterprise bargaining meeting with ANZ held on 9 April 2001 I'll mark exhibit M9.

EXHIBIT #M9 COPY OF FSUs SUMMARY OF NOTES OF ENTERPRISE BARGAINING MEETING WITH ANZ HELD ON 9/4/2001

PN744

MS MALONEY: Your Honour, if I could take you to exhibit M8 it's an agenda for the meeting that was held on 9 April. Your Honour for the meetings that did take place the ANZ and the FSU alternated in drafting the agenda consulting in terms of drafting it up. I take your Honour to the agenda meeting four and you will see under item 4 a follow up from the last meeting award review. That was a term that ANZ basically came up with and you will note that it is also the same term that they referred to in paragraph 9A of P2.

PN745

Your Honour, if I take you to M9 and we make no bones that this is a summary of FSU notes we don't put any hide in that so, we wouldn't claim but it's - we had the practice of writing up notes of our meetings for our own information so it's not a joint document and by summary of those notes how on 9 April 2001 and on the first page follow up from the last meeting an award review ANZ and that's where it states ANZ say this is an EBA negotiation under award review. The award is a minimum rates award any of the changes relieved can be packaged into the EB ANZ rejects the change to clause 6.2.

PN746

Now, our initial response your Honour, and that's clearly there that was to narrow however having considered what they put we subsequently changed and that was when we subsequently withdrew the claim. Your Honour, I don't know if a lot goes on the reason I raised it because I want to make sure there's no factual - it's just factually correct in terms of what happened when. I don't know if anything else hangs on it but I just didn't want to leave it lying because it is disputed of what was put on that day.

PN747

What actually, in our view, on April 18 - yes, as I say, so the issue of award review wasn't discussed at the meeting of April 18. Your Honour, if I could just draw some points together in conclusion on 170N, and just in conclusion we say - - -

PN748

THE SENIOR DEPUTY PRESIDENT: How much longer are you likely to be?

PN749

MS MALONEY: Probably about five minutes.

PN750

THE SENIOR DEPUTY PRESIDENT: All right. I'll take that as your estimate of how long you'll be but the curtain will come down at a quarter past one.

PN751

MS MALONEY: Right, what happens at a quarter past one?

PN752

THE SENIOR DEPUTY PRESIDENT: There'll be an adjournment for the purposes of written submissions.

PN753

MS MALONEY: Right. Can I seek clarification, your Honour. Written submissions - - -

PN754

THE SENIOR DEPUTY PRESIDENT: You'll be finished.

PN755

MS MALONEY: Right. Well, your Honour, just in terms of 170N we would say, firstly, that the subject matter of the application that's before you is not a matter that's at issue between the parties. It's not a matter that's in the notice of the bargaining period, it's a matter that has clearly arisen from action that was taken by ANZ in July this year. So, firstly, we say, they don't even have a prima facie case.

PN756

Secondly, we say that the tests that were applied by Commissioner Smith and endorsed by your Honour are relevant. It's not enough for ANZ just to stand up here today and say we don't agree with those tests you shouldn't apply them. Usual bargaining in good faith is a relevant issue in terms of this matter. Thirdly, we say that the circumstances surrounding the bargaining whilst in the Full Bench case to see if the new claim for reduction in hands was pretty clear cut.

PN757

The circumstances what has happened in this matter needs to be taken into account and considered. The actions of the parties in addition to the bargaining period need to be taken into account and considered and based on the tests as set out by Commissioner Smith and endorsed by yourself your Honour we say, and in addition to our first argument that they can't even establish prima facie we say that the subject matter of the applications before you is not a matter that is issue between the parties.

PN758

We made the claim we withdrew the claim there is no other award matters that are on the table, the application arose arising from unilateral action taken by ANZ to introduce level three managers to TEC packaging. If the Commission pleases.

PN759

THE SENIOR DEPUTY PRESIDENT: I'll give you a second count.

PN760

MR PARRY: I won't be finished in two minutes.

PN761

THE SENIOR DEPUTY PRESIDENT: Thank you.

PN762

MR PARRY: I have to deal with this there's been allegations made about bad faith bargaining, documents and I would want to put something in writing, your Honour.

PN763

THE SENIOR DEPUTY PRESIDENT: You would?

PN764

MR PARRY: Yes.

PN765

THE SENIOR DEPUTY PRESIDENT: Yes, well you'd certainly be entitled to do that.

PN766

MS MALONEY: Well, your Honour, can we seek an issue of procedural matters here. The issue of the allegation of ANZ not bargaining in good faith was made in our submissions that were sent to them and filed on 2 November. The ANZ had 10 days in accordance with your directions to respond to those submissions. Their response in terms of P2, was a just rejected the allegation. There was no submissions put as to whatever we're putting on the table.

PN767

It is of concern, your Honour, and with due respect, to the FSU that we have tried to comply with your directions we've met your time table but then we receive a reply from ANZ as set out in point two as brief as anything and then comes today and claims that we've put new assertions or allegations on the table. Your Honour, if there is further new material going to be put up by ANZ we request the right to be able to answer it.

PN768

THE SENIOR DEPUTY PRESIDENT: Look, what will happen is this and it's the normal thing. With written submissions, those written submissions will be supplied by - when Mr Parry? The transcript will have to be available I would imagine.

PN769

MR PARRY: Yes, your Honour, I'm not sure is that two or three days the transcript?

PN770

THE SENIOR DEPUTY PRESIDENT: Three. It's a counsel estimate, Mr Parry, three days.

PN771

MR PARRY: Mid next week.

PN772

THE SENIOR DEPUTY PRESIDENT: That would be appropriate as far as I'm concerned.

PN773

MR PARRY: That's about the 28th or the 29th.

PN774

THE SENIOR DEPUTY PRESIDENT: Make it the 29th.

PN775

MR PARRY: As your Honour pleases.

PN776

THE SENIOR DEPUTY PRESIDENT: And a copy of that will naturally be served on the FSU.

PN777

MR PARRY: Yes, your Honour.

PN778

THE SENIOR DEPUTY PRESIDENT: If there is anything you wish to make an application about you will have seven days in which to make that application otherwise, I'll proceed to make a decision. Clear enough to everybody?

PN779

MR PARRY: Yes, your Honour.

PN780

THE SENIOR DEPUTY PRESIDENT: Thank you, I'll adjourn these proceedings accordingly. I adjourn the Commission until 2 pm.

ADJOURNED INDEFINITELY [1.15pm]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #P1 SUBMISSION OF ANZ DATED 12/10/2001 PN484
EXHIBIT #N1 SUBMISSION AND ASSOCIATED DOCUMENTS PN485
EXHIBIT #P2 ANZ REPLY DATED 13/11/2001 PN486
EXHIBIT #N2i EXTRACT FROM ANZ AUSTRALIAN POLICY VERSION OF JULY 1999 PN499
EXHIBIT #M3 ANNEXURES B AND C TO WRITTEN OUTLINE OF SUBMISSIONS BY ANZ MARKED P1 AS CONFIDENTIAL. DOCUMENT ENTITLED COPY OF ANZ DOCUMENT TITLED EBA2001, DATED 16/05/2001 AS CONFIDENTIAL PN668
EXHIBIT #M4 COPY OF CORRESPONDENCE TO THE INDUSTRIAL REGISTRAR, RE 2001/4327, DATED 10/08/2001 PN682
EXHIBIT #M5 EXTRACT OF TRANSCRIPT OF PROCEEDINGS DATED 15/08/2001 PN687
EXHIBIT #M6 COPY OF CORRESPONDENCE FROM TONY BECK, NATIONAL SECRETARY OF THE FSU TO SHANE FREEMAN, GENERAL MANAGER. PN721
EXHIBIT #M7 COPY OF LETTER FROM CHRISTOPHER BAKER HEAD OF WORKPLACE STRATEGY ANZ TO MR BECK. PN722
EXHIBIT #M8 COPY OF AGENDA FOR ANZ FSU ENTERPRISE BARGAINING MEETING HELD ON 9/4/2001 PN743
EXHIBIT #M9 COPY OF FSUs SUMMARY OF NOTES OF ENTERPRISE BARGAINING MEETING WITH ANZ HELD ON 9/4/2001 PN744