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Australian Industrial Relations Commission Transcripts |
AUSCRIPT PTY LTD
ABN 76 082 664 220
Level 4, 60-70 Elizabeth St SYDNEY NSW 2000
DX1344 Sydney Tel:(02) 9238-6500 Fax:(02) 9238-6533
TRANSCRIPT OF PROCEEDINGS
AUSTRALIAN INDUSTRIAL
RELATIONS COMMISSION
COMMISSIONER RAFFAELLI
AG2002/2273
APPLICATION FOR CERTIFICATION
OF CERTIFIED AGREEMENT - GREENFIELDS
AGREEMENT (DIVISION 2)
Application under section 170LL of the Act
by Patrick Cargo Pty Limited and Another
for certification of the Patrick Cargo
Pty Ltd Certified Agreement 2002
SYDNEY
11.19 AM, THURSDAY, 23 MAY 2002
Continued from 22.5.02
PN533
THE COMMISSIONER: Yes, Mr Ogilvie, are you on now?
PN534
MR REITANO: Sorry - if the Commission pleases, I need to announce a change of appearances. I now seek leave intervene on behalf of 13 further individuals to add to the 28 for whom I announced an appearance the other day. Could I hand up a list which I trust will be treated in the same way as the other two lists?
PN535
PN536
MR REITANO: I should indicate, for the benefit of both my friends at the bar table - I've just told Mr Ogilvie and I probably should indicate for the benefit of the Commission, the length and breadth of the 41 people for whom I now act covers all three awards that the Commission has designated as the designated awards for the purpose of this exercise.
PN537
THE COMMISSIONER: How do they know that?
PN538
MR REITANO: I presume they know that because that's the way they've been treated in their employment with their current employer.
PN539
THE COMMISSIONER: Yes, but they don't know how they will be treated by Patrick, do they?
PN540
MR REITANO: Oh, no, no. I'm not suggesting that.
PN541
THE COMMISSIONER: So what you're saying, just for my own information, is that when they were Ansett or ICH they were
PN542
either under the Transport - - -
PN543
MR REITANO: Yes.
PN544
THE COMMISSIONER: Yes, thank you. Yes, thank you, Mr Ogilvie?
PN545
MR OGILVIE: Commissioner, we would just repeat our objection in relation to the leave that was sought to intervene on behalf of the earlier people, but I don't need to go into any further detail in relation to that.
PN546
THE COMMISSIONER: Yes. I'll add to the interveners, thank you, Mr Ogilvie.
PN547
PN548
MR OGILVIE: Mr Lutterschmidt, for the purposes of the transcript can you please repeat your full name, occupation and address?---Anthony Lutterschmidt, 78 Appleton Dock Road, West Melbourne, Victoria.
PN549
What is your current occupation?---I'm the National Manager, Patrick Cargo Pty Ltd.
PN550
When did you commence employment with Patrick Cargo Pty Ltd?---16 May, last Thursday it was.
PN551
What were you doing prior to taking up your current position?---I held a position with a company in Melbourne called Menzies Cargo Services as the Cargo Terminal Manager for the Melbourne Division.
PN552
How long have you been employed in the airline industry?---Twelve years.
PN553
Prior to Menzies Cargo Services, I think you said, what other roles have you held?---I've worked with Impulse Airlines - that should be familiar to everybody - for the life of it. Prior to that I spent some time with Linfox in an aerodrome they own down in Avalon, Southern Victoria; and prior to that spent 10 years with Ansett International Division.
PN554
In your current position who do you report to?---David Knight.
PN555
Who is Mr Knight?---David is the Marketing and Development Director for Patrick.
PN556
In your current position what is the proposed management structure under you for Patrick Cargo?---Beneath myself there's the National Manager. There will be a Terminal or Port Manager in each of the locations as part of the business that's to be acquired and they will be Darwin, Brisbane, Sydney and Melbourne, from Monday.
**** ANTHONY LUTTERSCHMIDT XN MR OGILVIE
PN557
I'm just going to hand to the witness a copy of the proposed agreement, Commissioner.
PN558
Just before I take you to that agreement, Mr Lutterschmidt, in your role as National Manager for Patrick Cargo, what have you been doing since 16 May 2002?---Okay. I've been working with David, David Knight of Patrick, and his team along with some consultants to very swiftly get my head around the acquisition and its scope, with the view to seeking out and putting in place the Terminal Managers. In addition to that I've spent some time with some of the people in each location to have some general discussions and identify who the key players are.
PN559
Can the witness be shown a copy of exhibit R2, please, Commissioner. I haven't got a spare copy.
PN560
Can you just explain briefly to the Commission what that document is, please?---Yes, R2 is a letter of offer made to the incumbents under RCH terms.
PN561
When were those letters sent out?---Those letters were despatched on Monday just gone, this week.
PN562
You see exhibit R2 is actually addressed to Mr Norman Bracken?---Yes.
PN563
What is the difference between this letter and the letter sent to other employees, the other proposed employees?---The only difference will be the Ace 1 or the Ace 2 classification or offer, the rest of the document is the same.
PN564
Can I just get you to look at - you see where it says No 2 duties?---Yes.
PN565
Is the paragraph in this letter, exhibit R2, the same paragraph that went into all the letters?---Yes.
**** ANTHONY LUTTERSCHMIDT XN MR OGILVIE
PN566
What has been your role since 16 May 2002 in relation to the engagement of employees by Patrick Cargo Proprietary Limited?---My role has been in the main to identify the people at each location and determine, you know, the structure from Monday, Ace 1 and Ace 2.
PN567
Those letters that exhibit R2 is an example of when is the acceptance of the offer?---Yes, we put a - the date on the document I understood was 22nd which is not a lot of time given that we got them out on the Monday and since then a fax I believe has gone out to all of the ports, granting an extension till Friday, this Friday.
PN568
If the offers are accepted when are employees expected to commence work?---Monday, 27 May.
PN569
How many letters of offer have been sent out by Patrick Cargo?---My understanding is 63 letters have gone out.
PN570
Of those 63, how many have been offered Ace air cargo expert level 1?---Six.
PN571
Just so it's clear for the Commission, when will Patrick Cargo commence operations?---Monday, 27.
PN572
At which sites will it commence operations?---The sites I mentioned earlier being Darwin, Brisbane, Sydney and Melbourne.
PN573
You have in front of you a copy of a proposed agreement. Can you look at schedule 2 of that proposed agreement, please. Can you explain to the Commission your understanding of the kind of work that will be performed by air cargo experts under the agreement?---Yes, certainly. Air cargo experts will obtain from the customer airlines in each location a booking list which will be made up of lines of cargo on a day to day basis and they will be fundamentally
**** ANTHONY LUTTERSCHMIDT XN MR OGILVIE
required to ensure that those items arrive into the facilities are processed in accordance with the procedures for that operation and including the customer requirements. That's for an export type operation and obviously any freight arriving into the country will be duly processed and made ready for the customers of the airlines, being the freight forwards.
PN574
Just as example, can you give an example of the day to day type of work that the expert will be expected to perform under the agreement?---Yes, certainly. We take it from using say the Sydney operation as an example. There will be as terminal manager, who will produce a roster. The ace level 1 let's say will come into the operation starting a morning shift on a Monday. He will get a copy of that document and from the day he will see that he's got certain number of customers with certain requirements for that day and he may have 15 or 20 ace 2s to perform those tasks and the ace 1 will basically provide the direction for those ace level 2 people to go and work in various areas of the operation to perform the tasks required by the airline customers for that day or that shift.
PN575
Just give an example - can you give me an example of the physical tasks that those air cargo experts will perform?---Okay. Well, you know, they'll receive - they'll identify the booking list from the airline customers. They'll see that they accept through the cargo acceptance area the shipments booked under that document and verify their condition for the carriage in accordance, once again, with the airline requirements. Those items will then proceed out into the warehouse area where they'll physically be consolidated and made ready for the aircraft to take away.
PN576
Can I just stop you there. When you say being made ready for the aircraft to take away, what does that actually involve?---Okay. Consolidated onto aircraft equipment. Secured so that they are made ready for carriage. It's a term that will be familiar to all people that work in that area. There'll be some documentation that will be produced which is basically manifests which will have details of the unit numbers, weights and that information will also be entered into a proprietary cargo system which electronically reports to customs so that we get approval for those goods to leave the country.
PN577
Thank you. Can you look at in that schedule 2 of the proposed agreement. You see, at the top there, a definition of an ACE2. In the second line, it says, "in a hands on multi skilled capacity covering all duties"?---Yes.
**** ANTHONY LUTTERSCHMIDT XN MR OGILVIE
PN578
What is your understanding of those words, "multi skilled capacity covering all duties"?---Okay. Well, basically they'll be - in any given shift they could be required to be involved in the cargo bill process which is consolidating those items of freight. They could be producing the manifests, electronically reporting those goods to customs by way of the proprietary cargo system. They could also get on a forklift and physically move some of these items around the place, or a motorised tug, whatever equipment is required in the use of the business. That is multi skilling.
PN579
Can you look to the third line in that definition of ACE2 and there's the words there, "front office related activity". Can you explain to the Commission what that means, please?---Yes, certainly. Front office related activity - - -
PN580
THE COMMISSIONER: Excuse me. Where's this? Sorry, what are we looking at? Sorry, Mr Ogilvie.
PN581
MR OGILVIE: In the third line, Commissioner, it says, "ramps/sheds/front office related activity".
PN582
THE WITNESS: Basically that track - the customers of the airlines being the freight forwarders will transact across the what we call the land side barrier which is public space and they'll be delivering or picking up the goods that the airlines will take away and that in the main is determined as front office activity.
PN583
MR OGILVIE: You see at the end of that third line and then the start of the fourth line of that definition it says, "use of computer and communication aids, compilation of reports". Can you explain to the Commission what that would entail?---Yes, certainly. I previously mentioned that a proprietary cargo system is a, it's just a PC based thing. They also use things like mobile phones, two way radios, fax machines. That's pretty much what I mean by it.
**** ANTHONY LUTTERSCHMIDT XN MR OGILVIE
PN584
What's meant by compilation of reports?---Compilation of reports is producing manifests. From the booking list the shipments will be identified as they come into the facility and the goods themselves physically will be consolidated and each one of those units will have a manifest and that's a compilation of a report.
PN585
Can I get you to look now at the definition for an ACE, an air cargo expert 1, in the second paragraph there?---Yes.
PN586
What is your understanding of the difference of the work to be performed by a level 1 and a level 2?---Okay. The fundamental difference will be for the level 1s to assign the ACE level 2s their duties in any given shift on any given day and to ensure through the various processes of that shift that the various time lines are met relative to the particular customer whose work is being performed.
PN587
If I can take you to the, I think it's the start of the fourth line down it says - sorry at the end of the third line it says, "an ACE1, in addition to performing the hands on duties of the ACE2". Can you explain to the Commission what that means in your understanding of what - in terms of the people being employed?---Okay. The ACE level 1s will be required at any time during the course of business activity to work alongside and with ACE2s. That's part of their role keep the business going forward and once again just to repeat myself, the basic definition is that they'll be charged with that responsibility as a leading hand type role to ensure that the time lines are being met and the duties are being performed.
PN588
Can I take you to, I think it's the sixth line which is three up from the bottom, the words there "rostering statistics and training". Can you explain to the Commission what's meant by rostering there?---Yes, rostering won't actually be produced by the level 1s, but they'll certainly be using that document to service the business in terms of, you know, assigning tasks for the Ace level 2s. Statistics, training and supervision, they're not necessarily decision type processes, rather than receiving that information and acting upon it to the Ace level 2s. Statistics are produced by the proprietary cargo system so that could amount to pushing a button, getting a document off a printer and putting it into trade, as an example.
**** ANTHONY LUTTERSCHMIDT XN MR OGILVIE
PN589
The last set of words I want to take you to is at the end, I think, of that line you were just referring to, it says "General organisation and co-ordination of all work areas"?---Yes.
PN590
What do you understand that to mean?---All work areas applicable to any above paragraph, we talk about ramp freight, aircraft service and office.
PN591
In your experience and understanding of the former ICH business, how is the work to be performed under the proposed agreement different to the work that was performed in the ICH business?
PN592
MR REITANO: I object. How can the witness say that? He's given no evidence of any knowledge of the ICH business.
PN593
THE COMMISSIONER: Well let's find out whether he has any knowledge.
PN594
MR OGILVIE: I'll ask another question.
PN595
Are you familiar with the ICH business?---I believe my 12 years of industry experience and having spent a major part of that 12 years in the business as I understand would be the ICH business, gives me reasonable understanding of the fundamental mechanics of how it works and the tasks that are performed within it.
PN596
Based on that understanding, what is your understanding of the difference between the work performed in the ICH business to the work that is proposed to be performed under the proposed agreement?---Okay, well, I mean clearly a number of tasks in terms of servicing the air line customers will still be a requirement from Monday. However, the vision and youth of the business moving forward is that it will evolve by customer and market demand and will give the opportunity to both Ace level 1s and 2s to be trained in areas of the
**** ANTHONY LUTTERSCHMIDT XN MR OGILVIE
business that they may not have previously had exposure or opportunity in and, you know, to that extent from Monday, if you take Monday morning, then certainly a lot of what exists will remain, but very swiftly the opportunity for these people will certainly change and become clear.
PN597
Could I just show the witness a copy of the Airline Operations (Transport Workers) Award 1998?
PN598
In your experience in the industry, have you had opportunity to look at this award before?---I've seen the document, yes.
PN599
Are you familiar with the classification structure set out in this award?---Yes.
PN600
Can I get you to turn to clause 20, which I think is on page 14 of that document?---Yes.
PN601
Can I get you to firstly look at clause 20.1 and those classifications to which the award applies?---Yes.
PN602
And please look at the - turn over the page and look at the classification definitions in 20.2 and I think they go through to page 15 and 16. Just read them?---What is it, eight?
PN603
Eight, yes. Goes to page 15, 16 and 17(3), I think. Firstly, can I ask you in so far as the descriptions of those classifications in 20.2 relate to freight or cargo operations, is the type of work described in those classifications the same or similar to that to be formed by Patrick employees under the proposed agreement?---In the main, yes.
PN604
Can you explain what you mean by, "in the main"?---Okay, the type of work that would be performed under the Patrick cargo business in it's cargo terminal and freight terminal facilities will be receiving goods on behalf of the airline customers, you know in a warehouse environment primarily, making sure that those, those items are identified as they come into the store by way of marks and numbers, be consolidated and made ready to go on an aeroplane.
**** ANTHONY LUTTERSCHMIDT XN MR OGILVIE
PN605
I just want to show you another award and I've shown the witness a copy of the Salaried Staff Ansett Airlines Award 1998. Have you seen a copy of that award before today?---Yes.
PN606
Can I get you to look at clause 17, Mr Lutterschmidt, and just read 17.1, quickly?---Would you like me to read that out?
PN607
No, just to yourself. Have you had a chance to read that?---Yes.
PN608
Is that description similar or the same as work that would be required to be performed by air cargo experts under the agreement?---No.
PN609
Why not?---The key elements of this paragraph talk about administration, counselling, discipline. They're all fairly key criteria in the business as I see it and they're matters for management.
PN610
And when you say management, who do you mean?---The terminal management.
PN611
And under what conditions are the terminal managers to be employed by Patrick Cargo?---What do you mean by under what conditions?
PN612
Sorry, I'll withdraw that. Are the terminal managers to be employed under the proposed agreement?---No.
PN613
I'm showing the witness a copy of the, "Airlines Operations Clerical and Administrative Award 1999". Are you familiar with this award?---Yes, I've seen it.
**** ANTHONY LUTTERSCHMIDT XN MR OGILVIE
PN614
Can I get you to look at clause 18 please Mr Lutterschmidt?---Classifications.
PN615
Can I just refer you to the first line of the classification. Can you see there, it says:
PN616
The following classification structure applies to Ansett Australia and Ansett Air Freight.
PN617
?---Yes.
PN618
I think it's on page 13 of the document I have but it is clause 18.4.4?---Multi-skilled level for the reservations.
PN619
That's right. In the terms of the airline operations industry, what is your understanding of reservations?---Reservations in airline terms is taking passenger bookings. However, this one says, under classification it applies to Ansett Australia and Ansett Airfreight. Ansett Airfreight had a retail product. That does not apply. I can only draw the line that this is in here because Ansett Airfreight was a business and this is what it is relevant to. It is not relevant to Patrick Cargo.
PN620
That was the next question I was going to ask you. Is the business of Patrick Cargo proposed to involve a reservations function?---No. No, a customer airlines will have that.
PN621
If you turn over the page and look at I think it is 18.4.5, level 5. It says:
PN622
Multiskilled level for traffic.
**** ANTHONY LUTTERSCHMIDT XN MR OGILVIE
PN623
Is the proposed business of Ansett Cargo to involve traffic.
PN624
MR REITANO: No, I object to that. That is not what it says.
PN625
THE COMMISSIONER: Not what it says what?
PN626
MR REITANO: My friend says that the document said, "Multiskilled level for traffic". Mine doesn't say that. Mine says, "Multiskilled level for traffic, cargo and freight". Unless I've been given a different document.
PN627
THE COMMISSIONER: Yes, they are three words aren't they?
PN628
MR REITANO: Well, it is one sentence, Commissioner, with respect.
PN629
THE COMMISSIONER: I know but he's entitled to ask whatever question he wants. You can - he has asked a question about a word.
PN630
MR REITANO: I withdraw the objection, I don't want to waste time.
PN631
MR OGILVIE: Just for clarity, can you look at the heading for clause 18.4.5. Can you see there it says:
PN632
Level 5 - Multiskilled level for traffic, cargo and freight.
PN633
Can I take you first to the word traffic. Do operations, the proposed operations of Patrick Cargo is it proposed to involve traffic functions?---No, it's not.
**** ANTHONY LUTTERSCHMIDT XN MR OGILVIE
PN634
Do the operations of Patrick Cargo propose to involve cargo and freight?---Yes.
PN635
Can I take you down to 18.4.6?---Retail? Is that multiskilled level for retail?
PN636
That's correct. Is it proposed that Patrick Cargo will involve retail operations?---No, it's not.
PN637
What is your understanding of what retail is for the purposes of the airline operations industry?---Retail is a - if I could use an example - TNT have a retail product which is a courier-satchel product. They market that in the market-place and service it, sales and operations perspective. That is my understanding of the retail product. Patrick Cargo do not propose having a retail product.
PN638
I just want to jump ahead. Can you look at 18.4.8 where it says level 8?---Yes.
PN639
Can you go down to 18.4.8 paragraph (e), Responsibility?---E for echo, Responsibility?
PN640
Yes?---Yes.
PN641
The description that follows there. If you were to apply that to the work to be performed by air cargo experts at Patrick Cargo is that a description of work performed by an ACE2 or an ACE1?---ACE1, however, I will say that, "able to suggest improvements in the area of work", my expectation - and it is a reasonable one I think - would be that all ACE 1 and 2s would be comfortable with that. But the responsibility for the assignment of work, as I have indicated earlier, is ACE1. Discipline there is a local floor level. Anything above that is a management issue.
**** ANTHONY LUTTERSCHMIDT XN MR OGILVIE
PN642
When you mean a management issue, what do you mean?---If it requires a discussion away from the shop floor, then that will be performed by management.
PN643
Look still under 18.4.8 but can you look at 18.4.8 paragraph (f)?---Supervisory?
PN644
Yes. Does that more accurately reflect work to be performed by an ACE2 or an ACE1?---ACE1, means supervisor and leading hand are one and the same.
PN645
If you go backwards up the scale to the level 7 which is 18.4.7, can you look at 18.4.7(e)?---Responsibility.
PN646
Yes, does that more accurately describe work performed under the agreement by an ACE2 or an ACE1?---ACE1.
PN647
Why do you say that?---The third and fourth words, ensuring inaccuracies once again, at shop floor level it would be incumbent upon the ACE1 Level to see that the Aces are performing the work in an accurate manner to capture that at that time and at that level.
PN648
Just below that, 18.4.7(f) where it says supervision, does that more accurately describe an ACE2 or an ACE1?---ACE1, first level is at the coal face, shop floor.
PN649
In looking a the Airline Operations Transport Workers Award (1998) and the classification structure set out in that and the Airline Operations Clerical and Administrative Award (1999) which of those two classification structures in your view more closely represents the work that will be required to be performed by air cargo experts under the agreement?---As Patrick Cargo Business, the Transport Workers (1998) Award, it's a cargo terminal facility business and the document, TWU documents are more appropriate - - -
**** ANTHONY LUTTERSCHMIDT XN MR OGILVIE
PN650
No further questions, Commissioner.
PN651
THE COMMISSIONER: Ms Tisdale?
PN652
MS TISDALE: No questions, thank you, Commissioner.
PN653
PN654
MR REITANO: Sir, I don't think you'll disagree with the proposition that when you looked at - I think you were shown Level 8 and the part of the definition of Level 8 in the Clerical and Administrative Award and part of the definition of Level 7 from recollection. Do you have those open in front of you?---Level?
PN655
Clause 18.4.8 and clause 18.4.7, if that helps?---Thank you, 18.4.8 being Level 8?
PN656
Yes and the one above that is obviously Level 7?---Correct, yes.
PN657
You were taken to 18.4.7(e) and (f) and 18.4.8(b) and (f), you were asked some specific questions about those two clauses and I want you to look at the remainder of both those clauses, that is, (a), (b), (c), (d) and (e) respectively, if you can read those to yourself?---Yes.
PN658
Thank you. All of those would fall within, or encompass the duties of an ACE, I hope I get this right, 1 would they not?---Yes.
**** ANTHONY LUTTERSCHMIDT XXN MR REITANO
PN659
Thank you. Could I ask you just to have a look at 18.4.9 for me, which is just below those. You weren't asked any questions about that?---Yes.
PN660
It goes over the page I think?---Yes.
PN661
Do those duties, as they're listed in that clause, reflect, and I'll take it in steps, some of the duties of an ACE 1?---If you take monitoring and supervising as being one and the same, then yes.
PN662
Yes. Are there other things there that might be - I'll perhaps give you an example, for counselling employees in relation to performance issues, would that be something that would be expected of an ACE 1?---No.
PN663
What about ensuring that OH and S guidelines and policies are adhered to?---I mean, ACE 1 and 2 individuals will under OH and S requirements will form part of a committee, but any of those more formal sessions where OH and S is a topic will be driven by the manager.
PN664
All right. Is perhaps it fair to say that the level 9 is, I didn't write down the words you used, I think you said terminal manager?---Right.
PN665
Would the level 9 there reflect the terminal manager's position?---No.
PN666
No?---Can I correct myself there, just reading through some of these things?
PN667
Sure?---You know, terminal managers, this document is very - very wordy. Terminal managers in essence are my business controllers in each of the locations. Okay? As business controllers they're there to see that all of the environmental, the service delivery aspects are met. Now, you know, some of those things in there, it could be argued that they're appropriate. It just depends on one viewpoint, I suppose. Every individual is responsible for their own efficiency in the workplace.
**** ANTHONY LUTTERSCHMIDT XXN MR REITANO
PN668
Sure, but those types of responsibilities that are listed there are the types of responsibilities that as a general position you would expect the terminal manager to carry out, is that fair?---To oversee, yes.
PN669
Yes. Well, to oversee, does that mean that the ACE 1s who report to him are the ones responsible for those duties then?---Where they could impact on commercial aspects of the business, they're the responsibilities of the terminal manager, not an ACE 1.
PN670
But otherwise it would be a responsibility of an ACE 1?---If they're non-commercial?
PN671
Yes?---Yes. And at first level supervision?
PN672
Yes?---ACE 1.
PN673
Okay. Now, once again I'm just trying to take it in steps to be fair to you, but just to recap where we're at, I think you've said all of the duties of a level 7 and a level 8 fall within what would be excepted of an ACE 1?---Yes.
PN674
And subject to some qualifications that you've just mentioned now, some of the duties of a level 9 would fall within an ACE 1?---It would be difficult to argue. I mean, I would see my terminal managers - you know, counselling employees in relation to performance issues for example, I want my managers to do that.
PN675
Sure I did say with some qualifications that you mentioned, I just wanted to summarise where we were up to, and I'm not trying to - - -?---I think, for mine, 8 and 7 are more appropriate to ACE 1.
PN676
Okay. Can I just ask you to go back and read 18.4.5. Once again I think you were - in that case I think you were asked to read the whole of the level 5 definition, but you weren't please remind yourself of what it says?---Sure. Yes, multi-skilled for traffic cargo and freight. Yes.
**** ANTHONY LUTTERSCHMIDT XXN MR REITANO
PN677
Would it be fair to say that all of the things mentioned there in - sorry, have you read paragraphs (a) to (f), all of them?---(A) to (f)?
PN678
Yes?---Yes: knowledge, mental, social, physical - - -
PN679
Responsibility and supervision. Is it fair to say that all of the things mentioned there would broadly speaking be the things that you'd expect to be an ACE 2?---No.
PN680
Okay. Which ones wouldn't you expect of an ACE 2?---Responsibility and supervision, as described therein.
PN681
Right. So you wouldn't - I'm sorry, you were going to say something else?---Just, I mean, you know, right the way through you talk about using a keyboard and you know, having a knowledge of your workplace. I mean, people have to be responsible for their own work, and if they're not sure about their roles, or their duties, there's sufficient training and documentation to get them over the line in that respect. I mean, it's assumed that these people have been working in the industry, and you wouldn't get a taxi driver, for example, to come in and expect them from day one to do it right. It's obviously specific to that process. But beyond that they're fairly straightforward functions.
PN682
Therefore, the types of things that you would expect an ACE 2 to do?---The same words, from what I can ascertain, from level 1 through to level 5, 6.
PN683
Yes. Sir, I'm not asking you to debate the point with me, I'm really asking you to deal with my question. The types of things in 18.4.5 would all fall within the types of duties that you'd expect an ACE 2 to perform?---You could argue (a) to (d), possibly, but (e) and (f), absolutely not.
PN684
Right. So you wouldn't expect an ACE 2 for example to be responsible for ensuring timely and accurate actions, is that right?---Correct.
**** ANTHONY LUTTERSCHMIDT XXN MR REITANO
PN685
And you wouldn't expect an ACE 2 to be involved in problem-solving and suggesting improvements to the system due to their extensive knowledge?---Correct.
PN686
And you wouldn't except an ACE 2 to be involved in passive supervision?---Passive supervision? No.
PN687
Nor would you expect an ACE 2 to be able to coordinate work flow within the section and maintain quality as part of a team?---No, coordination is an ACE 1 responsibility.
PN688
I'm sorry, what was that?---Coordination is for ACE 1.
PN689
Did you have any role in preparing the certified agreement that is the subject of these proceeding?---No, I came on at the 16th.
PN690
So the agreement was prepared, as it were, before then?---In part.
PN691
In any event, you didn't have any role?---Well, no, I - I had some input at the later stage, in terms of, you know, I was asked - I was involved in the process of saying, "Well, this is the sort of business that we can run from Monday the 27th and looking forward. This is the type of operation that would be, in my belief, successful in this industry."
PN692
You were aware that an ACE 2 is expected to be a multi-skilled employee, correct?---You can do more than one thing?
PN693
Yes, because that is how you define multi-skilled?---Pretty much.
**** ANTHONY LUTTERSCHMIDT XXN MR REITANO
PN694
And that an ACE 2 is expected to be able to perform or cover all duties in the front office. Correct?---In any part of the cargo terminal facility.
PN695
Yes, but I am just dealing with the front office at the moment. They are expected to be able to perform all duties in the front office. Correct?---As required by the operation, yes.
PN696
And that might involve, amongst other things, the operation of a computer. Correct?---Yes.
PN697
And you are aware that an ACE 2 might, from time to time, be required to fill in for an ACE 1 and perform the duties of an ACE 1?---If it is required by way of somebody calls in sick for example then that is an opportunity for someone to put their hand up to take a role for that shift.
PN698
But nonetheless you say, bearing in mind all of those things, that an ACE 2 does not have to be able to co-ordinate their work flow within the section and maintain the quality of that work as part of a team?---They may not be, if they are put in that situation - the fact that they have accepted the offer to step up would mean to me that they have got some confidence in themselves and their ability but it would be unfair to have an expectation that they would do it exactly the same as the ACE 1.
PN699
And similarly, nonetheless, despite everything that I have just mentioned to you, you say that an ACE 2 would not be responsible for ensuring timely and accurate performance of their duties?---Do you mean performing their functions as an ACE 2, no.
PN700
Yes?---If they have been assigned tasks by an ACE 1 to perform as an ACE 2 then that is not my expectation.
**** ANTHONY LUTTERSCHMIDT XXN MR REITANO
PN701
And you wouldn't expect them to be involved in problem solving?---No.
PN702
I see. And you wouldn't expect them to suggest from time to time improvements to the system having regard for their knowledge and experience?---Well, I think I mentioned earlier, I would welcome any input from anybody in the place to offer or put forward suggestions about business improvement. I would encourage that.
PN703
You see, you are aware, I think you said earlier that you had some experience of the ICH business didn't you?---Yes. It wasn't known as ICH when I worked in it. But it was - it was the same terminal facilities, the same customers, the same products.
PN704
I just want you to accept from me that there are approximately 70 employees in the business as we speak as it were. You would broadly agree with that number wouldn't you?---70 is the number, yes.
PN705
And you would be aware that there are - I take it you are aware that there are employees classified under the Clerical and Administrative Award?---In the ICH business?
PN706
Yes. And when I talk about the Clerical and Administrative Award that is the reward we have been referring to for the last fifteen minutes or so?---Yes.
PN707
And you are aware there are people covered by the TWU Award, the Transport Award and there are people covered by the Salary Officers Award?---Possibly. I mean I would have to look specifically at the list of what has come across.
PN708
I am not asking about people coming across I am just asking you in the business at the moment?---Possibly.
**** ANTHONY LUTTERSCHMIDT XXN MR REITANO
PN709
Okay, let us just concentrate on the first two because you seem to be on firmer ground there?---Yes.
PN710
You are aware that of the people coming across, as it were, there is approximately and, once again we won't get hung up on numbers, but approximately 30 or so employees who would be covered by the Clerical and Administrative Award?---Yes.
PN711
And approximately 40 who would be covered by the Transport Award. Correct?---Yes, that would be - yes.
PN712
And you are aware, just focusing on the Clerical Award for the moment, that the 30 coming across you are aware that the vast majority of those people are classified as level 5s under the Clerical and Administrative Award. You can answer the question?---I am aware - - -
PN713
MR OGILVIE: I object to the question, Commissioner. The answer was given that he understood they were classified under the Clerical Award. I don't think the witness has given an answer saying he had knowledge as to which class - - -
PN714
THE COMMISSIONER: Mr Ogilvie, let us see. You let the cat out of the bag a bit but let us see what he knows or doesn't know.
PN715
?---Would you mind repeating the question please, sorry.
PN716
You are aware, I think we went through the numbers and said there were approximately 30 under the Clerical Award and you said yes to that, approximately and I think I then said there were about - sorry, I didn't say a number I said the vast majority of which were classified at about level 5 of the Clerical and Admin Award?---If that is what the document says, the spreadsheet says or whatever then - - -
**** ANTHONY LUTTERSCHMIDT XXN MR REITANO
PN717
Do you have that spreadsheet, sir?---No, not on my person, no.
PN718
I call for it. Do you have a copy with you somewhere in the courtroom?---No idea.
PN719
Does Mr Ogilvie have a copy?---I wouldn't know.
PN720
I ask for production of the spreadsheet .
PN721
THE COMMISSIONER: He doesn't have it.
PN722
MR REITANO: Well, he doesn't know, but my friend might have it.
PN723
THE COMMISSIONER: Mr Ogilvie?
PN724
MR OGILVIE: The witness referred to a spreadsheet. I would seek clarification on the particular document that's being sought by the interveners at this stage. There are a number of documents setting out the levels of classifications of existing ICH employees. I'm not sure how that's relevant for these purposes, Commissioner.
PN725
THE COMMISSIONER: Well, don't worry about how relevant it is, have you got it or not?
PN726
MR OGILVIE: Can I just seek some instructions?
**** ANTHONY LUTTERSCHMIDT XXN MR REITANO
PN727
MR OGILVIE: Commissioner, I have a document that has been provided to me by my client for the purpose of these proceedings and it's been created by my client for the purpose of these proceedings. Quite clearly it's based on information received from the administrator as to the - the list includes names of employees who will be made offers and it's described in the document as a rate reference description in their previous positions as employed by International Cargo Holdings.
PN728
I'm concerned about the confidentiality of the document in that it contains details of gross earnings and annual ordinary earnings for each of those people based on the information provided by the administrator and I'm concerned that the Privacy Act provisions notwithstanding about releasing that information to anyone beyond the bar table. I'm happy to hand a copy to the Commission. I've got one other copy which I can give to my learned friend.
PN729
This is a document that's been prepared by my client for the purposes of the proceedings. The witness wasn't involved in the preparation of the document and the witness would have difficulty - could be asked questions about it but whether or not he'd be able to answer questions we'd have some concerns. So at this stage we're prepared to produce that document to my learned friend and to the Commission, but ask that it be kept confidential.
PN730
THE COMMISSIONER: There's no problem with that, is there?
PN731
MR REITANO: There's no problem. I give that undertaking on behalf of the ASU and myself. I'd assume Ms Tisdale is asked to give a similar undertaking as well.
PN732
MS TISDALE: No trouble with that.
PN733
MR REITANO: Can I show the witness a copy of the document?
**** ANTHONY LUTTERSCHMIDT XXN MR REITANO
PN734
THE COMMISSIONER: Sure.
PN735
MR REITANO: Is that the document you are referring to, sir, or is it some other document?---It's some other document. The letters of offer that were presented earlier, I use the term spreadsheet, to do a mail merge you have got to put those names and addresses on a spread sheet and that's the spread sheet that I am familiar with. It's not this one.
PN736
Is that a document that identifies by current classification - the document you are referring to, not that one - where the employees sit under relevant awards?---Sorry, can you ask that again.
PN737
Yes, the document you are referring to?---Yes.
PN738
But it's not that one that you have in front of you?---Yes.
PN739
Does it identify doing it - I will just take Joe Bloggs as being covered by the clerical award as being a level four under that award?---I think it has got that column in it.
PN740
So you don't have that document with you today?---No.
PN741
Are you unable to recall whether the majority of employees fall under level four or five or six or seven?---No. My role since the 16th in this business preparation going forward from Monday was to set about ace levels one and two that the people that had been offered letters of employment and it may form part of the Patrick Cargo business from Monday and the type of work that they would be doing within that structure. That's where my focus has been preparing this to go forward.
**** ANTHONY LUTTERSCHMIDT XXN MR REITANO
PN742
Yes, we are talking on Thursday now and I want to deal with this Thursday compared to next Thursday. Fundamentally, what is going to happen on Monday is business as usual, so that what people are doing today will broadly speaking be what they are doing next Thursday, with some changes - I said broadly speaking?---Yes, given the time frame, yes, that would be fair.
PN743
So if someone is - if Mr Bracken for example is doing particular duties today, putting aside the fact that he is in the Commission, if he were at work doing particular duties today, we would expect to see him at work next week doing much the same job?---That would be a reasonable expectation.
PN744
That would be the same for the vast majority of employees?---Well, from Monday it would be up to the decision of the ACE 1's to determine what people are going to work in what areas and perform what duties.
PN745
I think Mr Bracken was an ACE 1. If that was his duty today, that will be his duty next Thursday, correct?---Yes.
PN746
You are aware that under the agreement the company can require employees to perform - the certified agreement, the one that we're talking about here - require employees to perform any other duties that it may reasonably require, correct?---This is the Patrick Cargo, is it?
PN747
Yes, that's correct?---Yes.
PN748
You are aware that the definitions for the ACE2 and the ACE1 aren't exhaustive of the duties that will be required of employees. I think in the ACE1, for example, it says "but not limited to" before it sets out the duties?---Yes. Including but not limited to, yes. I think that's commonly used in all documents.
**** ANTHONY LUTTERSCHMIDT XXN MR REITANO
PN749
I'm not suggesting it's uncommon or that it's common. I'm just asking you, you're aware of that. So you're aware that the duties can be expanded from those that appear in the document?---Yes.
PN750
Can I just ask you, I think you've got the agreement now open in front of you. Can you turn to page 2?---8 being enterprise employment, 9, 10?
PN751
Sorry, no. Page 2. I thought you had the Patrick Cargo Certified Agreement in front of you?---Patrick Cargo Pty Limited Certified Agreement 2002.
PN752
I'm sorry, I'm looking at a different version. Could you turn to page 4?---Title?
PN753
I'll tell you where, 3.4.3 you see there, all employees are required to work a 24/7, or be available to work on a 24/7 basis?---Yes, shiftwork.
PN754
Yes and that means that they could work night shift - would there be three shifts?---Predicated by the demands of the operation at each site it could mean three shifts.
PN755
Which would be? You'll have to help me what they're called?---Okay. Very early in the morning, day and very late at night.
PN756
Morning, day and night we'll call it?---Yes, that's fine.
PN757
An employee could be required under this agreement, which I assume you're familiar with, to work night shift, day in day out, over the length and breadth of their roster?---They could be required but one would pay particular attention to occupational health and safety.
**** ANTHONY LUTTERSCHMIDT XXN MR REITANO
PN758
Right, but at least under this agreement that could occur?---It could.
PN759
They could be required to work every Saturday and every Sunday as well, not in addition, but that's another possibility?---It could.
PN760
They could be required to work 11 public holidays in any year?---They could.
PN761
I think there's usually 11 but however many there are they could be required to work on all of them. If someone's classified as an ACE1 and required to perform the task of I think what you call the terminal manager, there's nothing in the agreement that suggests that they will be paid the higher rate of pay is there?---Are you suggesting that an ACE1 would be required to be a terminal manager?
PN762
I'm sorry, no. Assume that the terminal manager is ill and so an ACE1 is asked to do his job?---He wouldn't be.
PN763
He wouldn't be?---No.
PN764
So no ACE1 would be asked to act in as it were higher duties?---It's not my expectation of them to do so.
PN765
Putting that to one side, that won't happen. Is that what you're saying?---That's what I'm saying.
PN766
Have you done any calculations directed towards, that is, you done any calculations directed towards calculating the benefits that an employee would receive in monetary terms if covered by the clerical award as against what they will receive if covered by the certified agreement?---No.
**** ANTHONY LUTTERSCHMIDT XXN MR REITANO
PN767
You haven't done that process?---No, I wasn't involved with that process.
PN768
Given your - if your answer to this is, my experience is old, please tell me, given your experience of the award, are you able to tell me in what circumstances the tropical zone allowance would be payable?---No.
PN769
Is that because your experience is old or you just don't remember, or you don't know?---I don't know.
PN770
Are you able to tell me in what circumstances the foreign language allowance is payable?---No.
PN771
Are you able to tell me what the incidence of the payment of the tropical zone allowance in the ICH business is in recent times?---I don't know and I can only assume from those that the way that you are describing those allowances that that be more applicable to flying than cargo handling business.
PN772
What about the incidence of the transport allowance in the ICH business, have you got any familiarity with that?---Transport allowance?
PN773
Yes?---No.
PN774
No?---Is that to come to work?
PN775
I don't think so - depends on what time you are coming to work, before or after 7 - that is 7.00am or 7.00pm, you don't know?---No.
PN776
Are you familiar with the incidence of the first aid allowance?---I know what first aid allowance is.
**** ANTHONY LUTTERSCHMIDT XXN MR REITANO
PN777
No, are you familiar how many employees receive it in the employ of ICH?---No.
PN778
Well any employees of Patricks Cargo be required to be trained in first aid?---With respect to occupational health and safety in a safe and efficient warehouse I would imagine so, yes.
PN779
Have you made any inquiries of ICH as to the incidence of overtime?---No, sir.
PN780
Recall to work?---No.
PN781
I take it you haven't made - that is you haven't made any inquiries about any of the matters to do with the remuneration of the employees who are working for ICH?---To that detailed extent?
PN782
Yes?---No.
PN783
Other than having some document that you can't remember much about and I am not being critical when I say that, I can't remember a lot about what happened an hour ago, other than that document you don't have any knowledge of the classifications in which people fall other than a broad understanding - - -?---Previously? Historically? To that level of detail?
PN784
No, okay. Now have you been involved in any discussions with the administrator or the administrator's staff?---I spoke to David Gourdan yesterday about a service delivery issue and that is the first time I have spoken - David Gourdan was the administrator that in title.
**** ANTHONY LUTTERSCHMIDT XXN MR REITANO
PN785
But you were aware of discussions that are going on with various people with whom you work and the administrator from time to time, correct?---I have been with Patrick since fairly recently, my role prior to that was with a company that was also competing, bidding for this business, so to that extent I've had some involvement with that sale and bidding process. I don't think it is relevant to this.
PN786
I'm not going to ask you specific questions I hope, as a result of that experience you were aware that there were a number of bidders for this business is that fair?---Yes.
PN787
And there is no imperative from the administrator's side that you're aware of that says that the business must be sold by next Monday, correct?---I haven't seen any of the sale agreement or the - - -
PN788
As far as you're aware the imperative of next Monday's Patrick's imperative, correct?---As far as I'm aware?
PN789
Yes?---I mean prior to the Monday it was a week ago, so I haven't been directly involved in any of those changes or processes.
PN790
To the best of your knowledge, if the business if doesn't as it were change hands next Monday, it will continue on?---Right now today, my understanding is that the business is the concern of the administrator and I would assume that that is a question for the administrator at this time.
PN791
But no one suggested to you that if the business isn't sold on Monday that it will be closed down or wound up or anything like that?---No.
PN792
It is a profitable part of the business is it not?---I believe so.
**** ANTHONY LUTTERSCHMIDT XXN MR REITANO
PN793
Could I just ask you, and once again it's one of those questions that if you don't know please don't think you have to try, could you go to 15.9 of the agreement, that is the Patrick's agreement, I'm told it's on page 13 of your copy?---15.9 did you say?
PN794
Yes, if you would just read that to yourself?---Just 15.9 that you want me to read?
PN795
Just for the time being, after you've read that I'm going to ask you to read another clause but just that one first. Could you just go back to 15.4. Now perhaps you can't help me but while I've got the chance I thought I would ask somebody who might be able to, if a person employed under this agreement works in a twelve month period 1700 hours, now I deliberately say that number because it's less than 1760 hours, right and you know why I'm referring to 1760 because that's mentioned in 15.4?---Yes.
PN796
So the person who works 1700 hours do they as it were because of the effect of 15.9 lose 60 hours pay, is that understanding correct?---Well it would depend on the reason for them achieving 1700 hours, if it's due to industrial action, suspension of pay or unpaid leave or they are a part-time employee.
PN797
The problem I have with what you've said and otherwise I could probably sit down and not ask you any more questions but the problem I have with what you've said is that the word examples in 15.9, you see where you refer to industrial action, suspension of pay and unpaid leave they appear only to be examples and the sentence before starts:
PN798
The deductions of unworked unpaid salary hours that should have been worked will be made.
PN799
?---Right so they were rostered to work and for some of those examples didn't, therefore they wouldn't be paid for it would be my interpretation of that.
**** ANTHONY LUTTERSCHMIDT XXN MR REITANO
PN800
Can I ask you in what circumstances would there be suspension of pay?---If there was a particular incident that required, the workplace had required investigation.
PN801
MR REITANO: What about where, for example, where there was industrial action by one section of the plant and the other section couldn't be put to useful work, would that be a situation where there would be a suspension of pay?---Under this agreement.
PN802
MR OGILVIE: I should just interrupt. I think we're getting into an area which the witness is already expressing and I know the concession has been made he might not be able to answer these questions, the witness has given evidence that he's only been employed for a week and the witness and the witness has given evidence that he wasn't involved in the drafting of the agreement. I think he is being asked technical questions about the application and interpretation of the agreement that are not appropriate for someone in his position and someone who wasn't involved in the drafting of the agreement. On that basis we would object to the question but as long as it's put on what's his understanding given one week and not involved in the drafting we are happy for the questioning to go ahead.
PN803
THE COMMISSIONER: Yes. I've kept in mind his lack of involvement and knowledge as to the agreement but to the extent that he can assist us I think the question is okay if he can answer it.
PN804
MR REITANO: I think you were going to answer the question. You are now going to ask me to repeat it are you?---Well, just where we were at.
PN805
I think I'd asked you about suspensions of pay?---Yes and some sort of disciplinary - - -
PN806
You said discipline and then I gave you another example. Just bear with me. I described what you said as being disciplinary reasons?---Yes.
**** ANTHONY LUTTERSCHMIDT XXN MR REITANO
PN807
Then I said, what about where one part is engaged in industrial action and you decide to stand down the other part of the plant. Is that something which is envisaged by 15.9?---My interpretation, no.
PN808
That's unworked hours, isn't it?---Are you suggesting for whatever reason a handful of people decide to walk off the job, is that what you suggest?
PN809
Let's just slow it down: 40 people at the workplace?---Yes.
PN810
Five people walk off the job, they're the people who turn the power switch on so the power can't go on. You've got 35 employees with nothing to do. Is that a circumstance where you can say, look, sorry, there's nothing for you to do, go home, we're not going to pay you?---To turn on a switch.
PN811
I'm exaggerating the industrial action but you understand what I am saying?---I can't answer that question, sorry.
PN812
Thank you. What if - I was going to say Ansett but that's not a good example. What if Qantas were engaged in some form of industrial action and therefore people couldn't work because of that industrial action. Is that a circumstance in which there could be a suspension of pay and there would be unworked hours?---Qantas had industrial problems.
PN813
Yes?---That would be a matter for Qantas.
PN814
I'm sorry but because you couldn't get your cargo or your freight for whatever reason because of that industrial action, is that a circumstance where employees would have unworked hours under 15.9 and therefore have their pay suspended?---Patrick Cargo will have a service level supply agreement with Qantas for whatever task they might perform.
**** ANTHONY LUTTERSCHMIDT XXN MR REITANO
PN815
Yes?---And that would then come into question, in a situation like that.
PN816
I understand that, I am not really concerned about them, I'm more concerned about what happens to the remaining employees who are ready to work but there is no work for them to be done. Does 15.9 apply in those circumstances?---So Qantas have a problem for eight months of the year for example and therefore there's no work. Is that sort of where you are headed?
PN817
Try, Qantas have a problem for a week?---Right.
PN818
And there's no work, would 15.9 apply in those circumstances to bring about a deduction of pay?---So you are reading industrial action as any industrial action?
PN819
No, I'm trying to understand, sir, the words, suspension of pay?---i would read that a discipline.
PN820
Only disciplinary, is that right?---That's how I would read it.
PN821
That's all right. Finally and I think I've said finally last time but I mean it this time, finally you were shown the letter of appointment which is Mr Bracken's letter of appointment. I think this was returned to the Commissioner. Do you have approximately I think seven pages there, in yours?---I have seven pages, yes.
PN822
Was that the entirety of what was sent to Mr Bracken, I mean or sent to all the employees that seven page letter or were they sent more than that?---That's the letter of offer. There was a company hand book, a policy document, statement of entitlement and some may have received some copies of some tax forms from the ATO which you get from a post office.
**** ANTHONY LUTTERSCHMIDT XXN MR REITANO
PN823
Did any of the employees receive copies of the Airline Operations Transport Workers Award?---Not from my knowledge. They would have got a copy of the agreement too in that package I would imagine.
PN824
A certified agreement. Sorry?---I think so.
PN825
Are you sure about that?---Well, no, I'm not sure. I mean there were packages produced by - - -
PN826
I was going to suggest to you in due course that it didn't include a copy of the certified agreement. You just don't know?---No, I don't. I know the packages went out and I certainly know that there was a letter of offer in there and some other bits and bobs.
PN827
Now, can I just ask you to go to the heading your position?---My position?
PN828
No, no, in the letter "your position" or "the position"?---Yes.
PN829
You see your position with Patrick would be Ace 1. You will be employed on a full time basis. Your employment is subject to the - and I won't read the whole title - Transport Workers Award?---Yes.
PN830
Are they words that you agree to. Do you agree with that? Bear in mind I showed you earlier the Clerical Award?---I agree in the context that I think I indicated earlier when I was asked a question about what I felt the more applicable award was given the cargo freight terminal operations and in that context yes I agree with that.
PN831
You don't suggest that the Clerical Award is the award that would apply despite the fact that you have seen the spread sheet as you describe it in relation to the work that Mr Bracken is performing today and the fact that you agreed with me that what he was doing today was what he'd be doing next Thursday?---Given the time parameter that you're talking about?
**** ANTHONY LUTTERSCHMIDT XXN MR REITANO
PN832
Yes?---I would suggest that's reasonable, the business moving forward will certainly change.
PN833
And the business moving forward - I mean all businesses change, of course - the business moving forward will involve Mr Bracken performing as best as you are able to speculate about it, much the same sorts of duties that he performs today?---Some of the same duties will be performed and some others.
PN834
The substance of his position will involve the same duties that he performs today other than the fact that he's in the Commission today?---It's neither here nor there.
PN835
No,no, but I'm just asking you?---If you're talking from Monday to Thursday next week then yes that's so but there will be change in the environment.
PN836
I am not doubting that there will be changes. What I am suggesting to you is the substance of his duties, that is the core of his duties, the main function he served will over time remain the same?---As an Act 1 he will provided to provide some first level supervision.
PN837
He will be required to do all of the things that are set out in the relevant level under the award which applies to his level under the Clerical Award which applies to him, correct?---From Monday?
PN838
Yes?---From Monday he will be performing duties as prescribed by Ace level 1.
PN839
Well, that's not true is it? Sorry, that's not certain is it? I understand what you are saying?---We're only going to technicality as far as I can see.
**** ANTHONY LUTTERSCHMIDT XXN MR REITANO
PN840
You're assuming that he accepts the offer and you're assuming that the administrator sells the business to Patricks. On those two assumptions you say that he'd be performing Ace 1 duties?---Yes.
PN841
Sorry, ace 1 and 2 confuse me. The ace 1 duties that he'd be performing are broadly and in substance the same as the duties that he's performing today?---On Monday?
PN842
Yes. And over time, broadly speaking, the duties he is performing today will remain the same?---Possibly. I don't know what's going to happen in the future.
PN843
All right so it's pure speculation, is that fair, to suggest there is judicial change, we just don't know?---And that they will stay the same, yes.
PN844
We just don't know as we talk here?---No.
PN845
Thank you sir.
PN846
THE COMMISSIONER: Can I ask you some questions Mr Lutterschmidt? You have said that amongst the employees that have been made offers, I think you said you were aware that some have up to now been under the clerks award and others have been under the transport workers award?---That's my understanding.
PN847
Do you, when you employ your ACE 2s to the vast majority, will there be a differentiation in responsibility so that some are more clerical and some are more transport?---No.
PN848
No? So that really they will be doing the same sort of work?---Over time yes, they will.
**** ANTHONY LUTTERSCHMIDT XXN MR REITANO
PN849
So is that one of the developments that will occur over time?---Correct, yes.
PN850
Can you go back to the clerks award?---Yes.
PN851
Now go back to 18.4 which is on page 12?---Yes.
PN852
Now you conceded that - you seem to suggest that level 7 and 8 probably point to ACE 1 type people?---Did you say page 12, sir?
PN853
Yes, that's the beginning of 18.5?---Right, okay, level 7.
PN854
On page 15 and 14 there is level 7 and 8?---Yes.
PN855
Which says supervision etcetera and I think you said in answers, they are probably ACE 1 they seem to suggest some of the things that ACE 1s do?---Yes.
PN856
Now, leaving them aside, and leaving aside the fact that I will take you to the transport workers award and be it to the extent that you know that, you do know what the work you will expect of people?---Sorry?
PN857
You do know what you - - -?---Expect of people?
PN858
Yes, right and be aware that Mr Ogilvie and Ms Tisdale and also Mr Reitano may have an opportunity to ask you questions arising out of my questions, be fair to them. Where is your estimate that over time, when I say over time not over 20 years time but within a reasonable period, when Patrick was doing things the way Patrick wants it done, not how ICH did it, where do you think an ACE 2 would be. Do you think they would fit better in level 1, level 2, level 3?---In which award, sir?
**** ANTHONY LUTTERSCHMIDT XXN MR REITANO
PN859
In the clerks award for now or maybe I should be fair, let's look at the transport workers award. I am going to give you some time to think about this.
PN860
The transport was I think from page 15 onwards. You got that?---Yes.
PN861
So the transport, there's trainee?---Mm.
PN862
But then there's level 2 Airline Services Operator, level 2A Leading Hand, level 3 Airline Services Operator, level 4 Airline Services Operator, level 5 Airline Service of Queensland. Looking at all of those classifications and including also the clerical ones, what's your estimate where you think an ACE 2 would fall? So you need to read it, I'm sorry. So you just take some time okay?---Commissioner, in looking for an answer for each award - - -
PN863
No. If you know what you want of your people, if somebody said to you, you've got to pick a classification that you think is the best fit?---For an ACE 2?
PN864
For an ACE 2. And may be it might be two classifications. It might be a level seven and a level eight somewhere or - just you think is the best fit. What's your estimate?---For the business that is current - - -
PN865
Well, I didn't ask you about businesses current. I asked you the business that Patricks seeks to - I'm not interested in ICH?---Level 4, for ACE 2.
PN866
Level 4 of what, the transport?---For transport.
PN867
How would that encompass dealing with clients? You know, like receiving paperwork and stuff like that. Is that clear?---How would - as documented?
**** ANTHONY LUTTERSCHMIDT XXN MR REITANO
PN868
Well yes. You've said that some of these people would be at the front desk as well as driving the forks?---A driver turns up to the front door, has a bit of paper and takes the bit of paper and unloads the truck. That to me is customer service.
PN869
Where do you think that fits with Level 4?---Perhaps one would be - I would be better served to include level 5, because there is that - going back a step. To operate basic communication in a computer age. That's to check a document on a terminal, that's fine. But the idea of transacting or interacting with a customer perse, is better serviced by level 5 in the Transport Workers.
PN870
So you say that five, possibly four but five, is the best fit for your anticipated employees at the ACE 2 level, between either of the awards and all of the classifications that you can see. When you said "to the Clerk's Award" and you said, "Clerks 7 and 8 looked like the sort of thing that an Ace 1 might have been", do you still say that if you look at the classifications or the levels in the Transport Workers, because you didn't have that - - -?---For an Ace 1?
PN871
Yes, I mean you made a choice within the Clerks Award, but is there something in the Transport Workers that stands out as better?---The levels 6, 7 and aspects of 8 in the Transport Workers are certainly applicable to Ace 1.
PN872
Better, you think, than those in the Clerical?---Yes, Commissioner, given that we'll be proposing to work directly with aeroplanes, aircraft, yes.
PN873
Yes, that's right. ICH might have had people who they call clerks who might never have gone near an aircraft?---That's correct.
PN874
You try not to do that?---We'll definitely be looking to, seeking to work with aircraft.
**** ANTHONY LUTTERSCHMIDT XXN MR REITANO
PN875
The other thing is this, you were asked how these people work, somebody could work every Saturday over the year. Well presume if somebody works every Saturday over the year, everybody else doesn't, or most of the other people don't, so what I really want to know is, are you able to say what the broad employment allocation looks like, that is are most people on day work or are most people working midnight and, of course, we're not really privy to how many people we're talking about in Darwin as opposed to Sydney or Melbourne?---There's an overview. In the main most of the work will be carried out between the hours of, say, five in the morning and ten in the evening, predicated by the schedule of the carriage which do change certainly seasonally. The problem is airlines have a northern and a summer schedule, but essentially the bulk of that work would be done in that time frame.
PN876
And pretty well the same seven days of the week?---A lot of schedules are daily schedules.
PN877
The amount of overtime that you would work, I'll go back. There's been an offer made to a number of people. The agreement bills in, I think, two hours of overtime each week. Are you able to say how much additional overtime?---It's a variable business, sir, it's very difficult to put a number on it. The business itself will be successful based on its ability to serve its customers and if there is a schedule change or whatever, then we will react to those demands. I can't say exactly how many hours that would be.
PN878
The ICH - you know this is just background, but it was an Ansett type company?---Yes.
PN879
Did it almost have some kind of inside running or an advantage in being linked to an actual airline which you won't have?---It thought it did to be fair and it was certainly used in the sales and marketing area as being ..... to be linked. Patrick Cargo Business is it's prime activity and focus, it is not an inline, it is a cargo handling business and that's where it's focus will be in the market place which I see as an advantage.
**** ANTHONY LUTTERSCHMIDT XXN MR REITANO
PN880
Are you able to estimate at this point whether or not a whole range of allowances that are provided for under the Transport and Clerks Award such as tropical allowances, foreign language allowances, coffin allowance, are you able to estimate if you even use some of those allowances?---No, I can't say.
PN881
Thank you. Mr Reitano, do you want to go next - we might adjourn. We will adjourn at 2 o'clock.
LUNCHEON ADJOURNMENT [1.04pm]
RESUMES [2.03pm]
PN882
MR REITANO: Before the adjournment the Commissioner asked you a number of questions and I don't want to have you here any longer than we need to so I will try and deal with what I have to ask you quickly. You were asked some questions about allowances and whether you could estimate the value of allowances under the award. I just wanted to make clear, your position is you just have no idea one way or the other as to the value of those allowances and/or their applicability?---Nothing more than an annualised salary, but not specific to the topic or allowance and whether it factored in or not, no.
PN883
You just haven't done any of these calculations?---No.
PN884
And nor have you tried to, and I'm not being critical, nor have you tried to obtain information about whether those allowances are currently claimed and what they are?---No and with the timeframe that I have been involved, I haven't had the opportunity.
PN885
Similarly in respect of overtime you haven't made any inquiries about the incidents or level of overtime that is worked presently, is that fair?---That's fair, yes.
**** ANTHONY LUTTERSCHMIDT XXN MR REITANO
PN886
Thank you. You were asked some questions about where you saw as I understood it, correct me if I'm wrong, where you saw in the future ACE 1s and ACE 2s falling under relevant awards and - relevant two awards, the clerks award and the transport award. Do you recall those questions?---Yes.
PN887
That is, I think, just before I sat down we were talking about I think you said that you agreed with me then that that is really speculation as to where people will be in the future?---Yes, look, I guess the - a successful business model to try and draw and analogy perhaps is you look at what Virgin Blue do in the way they go about their work and the way that, the way multi-skilling is applied and the way they get their work done. Now, you know, without drawing down the specific skills the idea of the freight terminal business going forward will, the way I say it, will adopt some of that approach.
PN888
But what we know is that for the immediate short term as it were, next Thursday, business as usual with perhaps some minor changes?---Yes, to be fair, I mean you have got to give the people the opportunity to embrace change and be coached and have proper training in specific areas etcetera, etcetera.
PN889
And perhaps to be involved in consultation about what change there might be and training about change and a whole range of things that good management does in terms of that sort of process?---Yes.
PN890
And what would be the outcome of that is really in the realms of speculation at the moment?---At the moment, yes.
PN891
Thank you, sir.
PN892
THE COMMISSIONER: Mr Ogilvie?
PN893
**** ANTHONY LUTTERSCHMIDT RXN MR OGILVIE
PN894
MR OGILVIE: You were asked by my learned friend some detailed questions about your understanding of the impact of clauses 15.4 and 15.9 of the agreement. Do you remember those questions being asked?---About the what if scenario, only 1700 hours was achieved or what if some people walk off the job or.
PN895
Were you involved in drafting of the agreements?---No.
PN896
Were you involved in any of the negotiations with the TWU for the - - -?---No.
PN897
Since starting on last Thursday have you been - have responsibility for industrial relations matters?---Responsibility?
PN898
Yes?---No.
PN899
Who has responsibility for industrial relation matters for Patrick Cargo?---As far as I am aware it is Bill Clayton's area.
PN900
And what is Bill Clayton's role?---What is Bill Clayton - sorry, he is the HR manager of Patricks.
PN901
THE COMMISSIONER: Sorry, Mr Ogilvie.
PN902
Before I let that pass and forget, can we clarify that that answer, when he says Mr Clayton is a director or chief of Patrick, he is talking about Patrick Cargo or is he talking about Patrick - the big Patrick?---I'm talking about Patrick the entity.
PN903
That's right - sorry?
**** ANTHONY LUTTERSCHMIDT RXN MR OGILVIE
PN904
MR OGILVIE: If it is of assistance, that is my understanding.
PN905
THE COMMISSIONER: Yes, that is okay. I thought that too, but I just want to be sure.
PN906
MR OGILVIE: You were asked by Mr Reitano some questions about 15.4. Have you got 15.4 in front of you?---Page 11?
PN907
Yes?---Yes, I have it in front of me.
PN908
And I think the example that was given to you was, what would happen if a person works 1700 hours? Do you remember that question?---Yes.
PN909
What would be - and I acknowledge that you've got limited - you weren't involved with drafting the agreement, but what would be your understanding if Patrick Cargo only required an employee to work 1700 hours not the full 1760 hours, what would they be paid?---Based on the letter of offer that I've seen, and it has gone out, and it says that they are full time employees and they are either an ACE1 or an ACE2, and my understanding of that relevant - this clause here, is that they would be paid the full time rate for that period as per the classification.
PN910
You were also asked some questions by my learned friend about clause 15.2. Can you look at that? I think it is just above 15.4, in relation to rostering and allocation arrangements?---I can see 15.2.
PN911
Sorry, it has just been pointed out to me that the question you were actually asked was in relation to 3.4(3) of the agreement, which is at the front?---Page 4?
**** ANTHONY LUTTERSCHMIDT RXN MR OGILVIE
PN912
Yes?---The 24 - - -
PN913
And do you remember being asked questions about rosters, and how employees could be rostered to work, I think the example was, every Saturday and every Sunday in accordance with the roster. Do you remember those questions?---Yes.
PN914
Can I get you to turn to clause 15.2 of the agreement again, and just read that, just the first paragraph there before it comes to 1 and 2?---Thank you.
PN915
Just the first sentence there. What is your understanding of that first sentence in clause 15.2?---The rostering will be based on requirements at site level and will use fair and reasonable lifestyle principles as worded.
PN916
And just finally, the Commissioner asked you some questions about what you saw as the best fit for an ACE 1 and an ACE 2 in terms of the awards. Do you remember that question?---Yes.
PN917
When answering that question was that something easy to do? Was that something which was easy for you to come up with a best fit, or was that - - -?---The concept of the cargo business for Monday and forward is that, you know, the idea of loading and unloading aeroplanes, consolidating and the reverse of that inside a freight terminal facility, and some of the aspects of the operation that happen within those two areas of the operation best fit the TWU award.
PN918
Thank you, Commissioner. No further questions.
PN919
PN920
THE COMMISSIONER: Right. Now, where does that leave us?
PN921
MR REITANO: I've had a short discussion with Mr Ogilvie, because there's a procedural oddity about the way in which we have gone. I'm not being critical or pejorative about that at all, but the discussion I had with Mr Ogilvie was based on estimates of time and to an extent what we had to say, and I think the agreement we came to was that he would go first, as it were, finishing his reply, and then I would just deal with anything additional that I wanted to say as a result of the evidence. And I think our respective estimates were 10 minutes and 10 minutes.
PN922
THE COMMISSIONER: Yes. I take it that - sorry, I won't say any more. Yes, Mr Ogilvie.
PN923
MR OGILVIE: Thank you, Commissioner. That was my understanding of the position. The applicant, Patrick Cargo, relies on the oral submissions made on Tuesday afternoon. In my submission the question as to whether or not the proposed agreement passes the no disadvantage test should be should be a simple one for the Commission. The evidence of Mr Lutterschmidt from this morning is quite clear. In direct answers to questions from the Commission he answered that, as best he could, although it was a difficult assessment to make, the best fit for what he saw as an ACE 2 was - his first answer I think was a level 4 under the transport award, and then, with some more questions from the Commission about customer service and those types of matter, he answered the best fit, as best he could, was a level 5 under the transport award.
PN924
In examination-in-chief he was asked some questions about where he saw an ACE 1 fitting, and those questions were specifically directed in relation to the clerical award, the clerical and administrative award. And his answer was that in looking at the level 7 operations classification and the level 8 operations classification he saw that they represented work to be performed, the kind of work that would be performed by an ACE 1.
PN925
In follow-up the Commission asked a more general question and said, "If you look at both awards where would you see an ACE 1 as fitting?" The answers quite clearly that were given by Mr Lutterschmidt was that he saw it as around, "six, seven or aspects of eight" I think was the answer that he gave in the Transport Award. The Commission is being asked to - for the purpose of the no disadvantage test - compare the opposed agreement against the designated awards in accordance with the determination made by the Commission on Tuesday.
PN926
In my submission a comparison between the Transport Workers Award - it is quite clear that if only the Transport Workers Award is relied upon for the purposes of the no disadvantage test that the terms and conditions as a whole, not just the rates but the terms and conditions as a whole for employees there is no disadvantage to employees in relation under the agreement as compared to the minimum standard set by that Award.
PN927
The Commission's attention has also been drawn to the Clerical Administrative Award and it has been identified as an appropriate Award for the purposes of the no disadvantage test. We would reiterate our submission that primarily the appropriate award is the Transport Workers Award, but it is clear that some aspects of the role - the clerical and administrative aspects of the role - that it is going to be expected of air cargo experts going into the future are covered by some aspects of the Clerical Administrative Award.
PN928
As a very crude comparison, the base rates set out in the Airline Operations Clerical Administrative Award which are at clause 19, the wage rates. Levels 1 to 4 for the operations levels. Level 4 is a minimum rate of $589.90 with a after two years service residual of $779. In our submission that rate is below any rate that is set out in the proposed agreement. As a crude way of comparison we draw the Commission's attention to what is termed, Ordinary Time Wages in part 7 of schedule 3 of the proposed agreement. The ACE2 rate for the first year is $618.
PN929
THE COMMISSIONER: Just hold it a second. Yes what did you say, ACE?
PN930
MR OGILVIE: ACE2 for year 1 is $618. Now I will come to what - this is just going on the Clerical and Administrative Award and I will come to what Mr Lutterschmidt said in evidence in a minute, the levels above that as a direct comparison of the base rate are in excess of - we concede are in excess of the ACE2 rate in ordinary time wages so they start a level 5 at $63,681 and go up to a level 9 which $72,457. They are in excess of the base rate in the ACE2. However, the ACE1 rates quite clearly in excess of those rates.
PN931
Mr Lutterschmidt's evidence was that he saw a level 7 and level 8 person they types of works by level 7 and level 8 as being covered by and ACE1 and I think he was asked some questions by my learned friend about level 9 and my recollection of his answer was that some of that description could relate to an ACE1 but some could relate to a management type staff position. In any event even if the work being perform by an ACE1 fitted into a level 9 under the Clerical award and I am talking about purely the work being performed is just clerical type work that is described as a level 9 and ACE1 would be paid in excess of that rate on ordinary time wages, not taking into account allowance which are incorporated into the annualised salary.
PN932
However Mr Lutterschmidt's evidence was that best fit and in answer to questions from the commission the best fit is really the Transport Workers' Award as the type of work that is going to be performed by employees of Patrick Cargo going into future. That in my submission is what the commission needs to really focus on. I take the commission to - - -
PN933
THE COMMISSIONER: Well I am looking at your P1 which I find much more helpful Mr Ogilvie, that is your table and its got rates there. That is easy to follow.
PN934
MR OGILVIE: Yes, Commissioner. By way of clarification those ACE rates - the annualised rate in the second column under Patrick Cargo Pty Limited Certified Agreement and I am looking at page 4, the calculation that is there is the ACE1 is - from implementation for example $59,000, that figure has simply been divided by 52 to give an annualised weekly rate.
PN935
THE COMMISSIONER: Yes, I understand that. I am aware of your base rates so called in schedule 3 but what I am saying is that when it gets to looking at the other awards I find the table is accurate as far as the other two awards go. Instead of going back to the documents they are all set out there.
PN936
MR OGILVIE: Mr Lutterschmidt's evidence was in questions from the commission, what is the best fit for the work going forward and he identified the classification of the transport workers award. Additionally he said for an ACE2 he said level 4 then possibly level 5. If the commission looks at the minimum weekly wage for level 5 in the Transport Workers' Award is $520.30 which is quite clearly less than the base rates and considerably less than a base rate set out in our agreement.
PN937
We would say that the commission probably does not need to go any further than that in doing a comparison, however, because the evidence is that there are clerical duties being performed, clerical and administrative type duties being performed reference should also be given to the Clerical and Administrative Award.
PN938
It's quite clear that the duties described in the clerical award are not an exact fit of the duties, that kind of work that is going to be performed by Patrick Cargo employees going into the future. We would ask the Commission to make an assessment based on Mr Lutterschmidt's evidence of the types of duties that are being performed. It will be a combination, quite clearly; multiskilled has been used in the agreement, a combination of transport type duties and clerical type duties.
PN939
We would say that the five through to seven classifications in the clerical award really don't provide a good indication to the Commission, a good description to the Commission of the types of work that have been performed, proposed to be performed by Patrick Cargo employees going into the future. The classification structure is quite detailed. There's eight levels. It would be difficult to draw a cut-off line in relation to each of those tasks and say, up to this point it's an ACE1 and this point is an ACE1.
PN940
The way descriptions have been formulated are very general but what we said, the Commission should be guided, we say the Commission should be guided by the Transport Workers Award and then to the extent necessary the duties might include some clerical duties and reference is being made to the clerical award. But, even taking that into account we would say that the agreement clearly passes the not disadvantage test in relation to rates and clearly passes the no disadvantage test in relation to the other matters set out in the agreement.
PN941
The third award which I haven't touched on is the salaried staff award which has higher rates again. Mr Lutterschmidt in his evidence was taken to the class one, which is the lowest operations level rate in that award and his evidence was that that description didn't match what an ACE1 let alone what an ACE2 was going to be doing and those types of duties really were more appropriate to the management and staff level positions that Patrick was proposing to employ.
PN942
On that basis we would say that the Commission need not give much regard at all to the salaried staff award at least in doing a comparison of the rates. In any event, even if an ACE1, the types of duties of an ACE1 would fall within say, for example, a class one and administrative classes of salaried award we would say the base rate for the ACE1 in our agreement exceeds the base rate in the class one even though that class was something that was identified by Mr Lutterschmidt as being above the level of ACE1 work.
PN943
The only other submission I would need to make in relation to the no disadvantage test is that this agreement may not have been negotiated with the ASU but it has been negotiated with the Transport Workers Union and the statutory declarations filed on behalf of both the company and on behalf of the Transport Workers Union indicate that in their view Mr James on behalf of the company and Mr Allen on behalf on the Transport Workers Union that the certified agreement provides no disadvantage to employees when compared against the two relevant awards that the company has identified.
PN944
The only other matter that I would like to address, and it is not something strictly arising out of the evidence of Mr Lutterschmidt today, it was something out of the submissions that were made at the end of Tuesday. An example from my submission was that this type of situation has already arisen and it is not a new situation having a company set up as a Greenfields company and the agreement being certified as agreement to the agreement. In my submission this very circumstance and very similar circumstances occurred in December 2001. If I can hand to the Commission.
PN945
THE COMMISSIONER: This is Bolton J, isn't it?
PN946
MR OGILVIE: No, Senior Deputy President Watson. Just handing three documents to the Commission. Three of them at least are Commission documents in any event but the first one is Print PR912763 which is the decision of Senior Deputy President Watson of 20 December 2001 in relation to the Ansett start up enterprise bargaining agreement. The second one is the supplementary decision of Senior Deputy President Watson and I just refer the Commission to paragraph 1.
PN947
THE COMMISSIONER: Just hold on for one moment. You have given me both supplementary decisions. I have got the transcripts.
PN948
MR OGILVIE: The second document which the Commission did have is Print PR912868 which is the supplementary decision of Senior Deputy President Watson. Paragraph 1 notes:
PN949
It related to an application pursuant to section 170LL of the Act. The certification of the Ansett ...(reads)... parties are Queens Cross Pty Limited
PN950
Which I will take the Commission to and was the employer or the proposed employer
PN951
Of the Ansett Pilots Association, the Association of Professional Engineers, Scientists ...(reads)... and the Transport Workers Union of Australia.
PN952
Paragraph 4 of the supplementary decision says:
PN953
I am satisfied that the relevant requirements of the Act and rules of the Commission have been met ...(reads)... 170LT of the act have been met.
PN954
The third document which I will give to the Commission given that the decision in itself is fairly brief, the third document that I will hand up to the Commission is a copy of the transcript of that hearing and if I could take the Commission to paragraph 5 of the submissions made by Mr D'Abaco says:
PN955
The business which will be operated by Queenscross is a consequence of a future purchase ...(reads)... and we say in those circumstances -
PN956
And it goes on to talk about the relevant awards. There's one other reference and at paragraph 25 it was submitted, I should indicate your Honour it is just as I was to flash out the circumstances of the application:
PN957
That the applicant Queenscross Pty Limited is a company which is currently controlled ...(reads)... will employ people in the new Ansett Airlines.
PN958
In my submission the Commission should be comfortable in certifying this agreement and not concerned with the submissions that this is not appropriately a 170LL application. The circumstances in the decision before Senior Deputy President Watson are almost identical to the circumstances that are occurring on Tuesday and today in relation to our application. I anticipate there will be a submission made by my learned friend that the particular points in relation to the agreement not being appropriately a section 170LL agreement were not raised and not dealt with by Senior Deputy President Watson at the hearing and I acknowledge that that is reflected in the transcript.
PN959
However, my submission is that the reason they were not raised by any of the five unions that were parties or the company Queenscross Pty Limited was that they weren't relevant for purposes and the parties understood quite clearly that there was a Greenfield agreement.
PN960
In my submission the Commission should be quite comfortable in certifying this agreement today and we would seek the Commission do so, if the Commission pleases.
PN961
THE COMMISSIONER: Yes thank you Mr Ogilvie. Ms Tisdale?
PN962
MS TISDALE: Thank you, Commissioner. Commissioner, there are a number of requirements set out under section 170LT of the Act. When the Commission is satisfied that those requirements have been met the Commission is required to certify the agreement that's been put forward for certification. We would say that those requirements have all been met and so that this agreement should be certified today.
PN963
One of the key requirements for certification of an agreement is a no disadvantage test and the no disadvantage test is to be applied on the global basis rather than a line by line basis but we're assisted and the Commission I think has already indicated it has been assisted by the comparative table that has been produced by Mr Ogilvie that does set out on a line by line basis a comparison of the designated awards in the agreement. It doesn't compare the salaried staff award but that award is for all intents and purposes no different in terms of its key conditions than the others that are set out there, the rates of pay are the key difference particularly at the class 1 level.
PN964
We say that this comparison shows that the agreement does provide some greater flexibility in some key regards compared to the underpinning awards or the no disadvantage awards. Some of these key differences include that the agreement provides for a 40 hour week. That is a 40 hour week paid for on the basis of a 38 hour week salary paid at ordinary time and two hours a week paid at overtime rates. The agreement provides for overtime to be paid after, extra overtime to be paid after employees work 1760 hours a year, which works out at 40 hours a week for 44 weeks as we discussed in some detail on Tuesday.
PN965
Additional overtime after that 1760 hours per annum is paid at overtime penalty rates which are set out in the agreement. The other main difference between the underpinning awards and the agreement is the classification structure. The classification structure under the agreement provides for a broader classification, a more multiskilled classification. We say, and we reiterate that the submissions made by Mr Ogilvie that the rates of pay provided for under the agreement are significantly in excess of those provided for by the relevant classifications in the no disadvantage test awards.
PN966
There has been some discussion about the status of various allowances under the awards and how they relate to the annualised salary, provided for under the agreement. During the process of the negotiations for this agreement, between the company and the union all the relevant allowances were identified, and they were added into a base salary. They were fully comprehended in the calculations to come up with the annualised salary. Mr Allen of the union has sworn a statutory declaration to that effect, saying that there is no disadvantage under the agreement compared to the relevant award. That is something that he has personal knowledge of.
PN967
We need to keep in mind that the agreement also provides for significant benefits over and above those provided for, in the no disadvantage test awards. Some of these superior benefits include the rates of pay themselves, but also employee entitlements which have been accrued under the Ansett enterprise agreement and which have been carried over and preserved and in the case of annual leave, long service leave, and sick leave, indexed annually at three percent and that is a feature of this agreement.
PN968
The redundancy entitlements accrued under the Ansett EBA and carried over and protected by this enterprise agreement are significantly in excess of what is set out in the relevant awards. The redundancy provisions that will apply from the date of employment onwards under this agreement are also significantly in excess of what the award provides for, significantly in excess of TCR. The agreement also provides for a greater number of rostered days off than the award provides for. The agreement provides for 15 a year and the awards provide for 12.
PN969
The agreement also provides access to performance based bonuses. So we would say that on any comparison of the agreement and the underpinning or the no disadvantage test awards, there is no disadvantage. The agreement more than easily meets the no disadvantage test. The agreement was made under section 170LL as a Greenfields agreement. It was negotiated between Patricks Cargo Pty Limited and between the Transport Workers Union. An agreement made under section 170LL doesn't require the participation or the consultation of employees, that's because there are no employees but in this case even though there are no actual employees there are proposed employees and those people could be identified. We knew who they were, who the employees were going to be and so even though the Act doesn't require this we discussed this enterprise agreement with our members.
PN970
There were meetings, there were explanations and there were votes taken particularly among the Sydney employees and they indicated their support for this agreement. There was no dodgy, behind closed doors deal that my learned friend was trying to suggest was somehow inherent in this Greenfields agreement during some of the submissions he made on Tuesday.
PN971
The opportunity to discuss the agreement, to consult about it, to vote on it, to have input into it wasn't limited to the members of our union and it wasn't limited to our union but some other unions and those who employed proposed employees who belonged to other unions chose not to participate in this process for their own reasons. They seemed to think that you can reach an agreement by some other mechanism.
PN972
We urge the Commission to certify this agreement in the terms sought. We say that this agreement is a good agreement. It provides for superior benefits to the relevant awards and most importantly it provides a secure basis for on-going well paid employment. Perhaps outside of the requirements of the Act but addressing more industrial relations realities I would say that we are not here today claiming that this agreement is going to be a perfect fit for the business that Patricks Cargo are attempting to build.
PN973
We don't know if the classification structure will show itself to be appropriate in six months time. We don't know whether six out of 63 ACE1s that are proposed to be employed at the moment is the proper proportion but time will tell. There will be plenty of opportunity to observe whether the new structure works, to discuss it, to negotiate about these matters and that's what we're committed to do and that's why we are here today seeking the certification of this agreement so that we can get to work and get this business going. The Commission pleases.
PN974
THE COMMISSIONER: Ms Tisdale, can I just ask you a few questions? Did you say in getting to that figure of $50,000 or $59,000 but let's stick to $50,000 for the ACE 2 that that comprehended in the minds of the negotiating parties, or at least in the minds of the TWU, the base rate, a mixture of base rates because people would have been all over the place, together with what their estimate was of the amount of weekends worth, the amount of public holidays foregone, the amount of allowances that they get. You say all that was before you in your negotiating period?
PN975
MS TISDALE: That is correct, it was. All of those things were identified based on the Award as well as the knowledge of the parties about the reality of the industry and the actual Ansett business and on my understanding a figure was come to and then just rounded up by a few more thousand dollars just to make sure.
PN976
THE COMMISSIONER: And you have mentioned some members of the TWU, I don't know how, do you know if there was any members of the TWU formerly employed - up to now employed by ICH that might have assisted Mr Allen or the TWU negotiators?
PN977
MS TISDALE: I can't mention their names but they were based in Sydney. That was the main group of employees who had meetings with Mr Allen and through the organiser based in the Sydney Branch, Natalie Sykes, they had meetings and they had discussions and they had a vote to support the agreement.
PN978
THE COMMISSIONER: Yes. The other thing too is this. Just one more question, I have asked this before. Maybe Mr Ogilvie needs to assist you, possibly not, but remind me of this redundancy. For service with Patrick, if people were there for another five years and they are made redundant, under the agreement they get - is it three weeks or two weeks per year of service, I can't remember now.
PN979
MS TISDALE: It is at schedule 3. There is a notice period plus a service payment which is perhaps meant to be a severance payment and they have capped it.
PN980
THE COMMISSIONER: Yes, I know where I am looking. I am looking at P1. I think that summarises it. Yes:
PN981
A service payment of three weeks ordinary time for each year of service ...(reads)... a maximum of 52 weeks.
PN982
So their service with Patrick, from presumably or possibly Monday on, if the agreement is certified, that is better than under the Clerk's Award which presumably employees would get TCR if the push comes to shove and the Transport Workers which is a bit better than TCR but nothing like the three weeks of Patrick.
PN983
MS TISDALE: That is actually correct and the date, I understand, in clause 8.8 it sets out some of those mechanics a little more clearly. The date, therefore, the date on which one set of calculations is used, that ceases and another date from which the new ones begin I think is 27 May.
PN984
THE COMMISSIONER: Remind me what happens. If somebody is made redundant in a month's time and they were with Ansett for five years, they're paid - well they might be paid a little bit from Patrick for Patrick's service, probably not, but they'd be paid the sort of redundancy that they would have got from Ansett. If there was no agreement, this agreement is not certified and the employees are engaged from Monday and they are under the Salaried Award or under the Transport Award, would they get anything from Ansett, or would they still get it because of some commercial arrangement between Patrick and ICH? Do you know more about this, Mr Ogilvie?
PN985
MR OGILVIE: Just repeat the question. I think it might be better. My understanding is that - I will get some instructions, see if I can clarify the question the Commission is asking so everyone understands it.
PN986
THE COMMISSIONER: Let's make it easy. If in a year's time someone's made redundant, they've worked for Ansett for five years and they've worked for Patricks for one and the agreement applies. They get one year's worth of - three weeks pay for that year of service with Patricks and they get the Ansett redundancy deal for the 10 years they were with Ansett.
PN987
If on the other hand there's no certified agreement, that these people are employed under the Transport Workers Award or the Clerks Award and still are so in 12 months time, for the Patricks service they would get - and they're made redundant - they would get, or the transport workers TCR and better and if they're clerks they might get RCR - Clerks Award but would they get anything out of their Ansett service?
PN988
MR OGILVIE: My instructions, Commissioner, is it's a little bit difficult to answer that question. The commercial arrangement between Patrick and the Administrator is that that offer - and in relation to the sale is that the offers of employment with those employees are based on one employment under the terms of the certified agreement and part of that, including the terms of the certified agreement, are that the Ansett entitlements accrued up until I think, the start date would be taken on by Patrick and Patrick Cargo Pty Limited.
PN989
The instructions from Mr Clayton are that that eventuality that there would be employment by Patrick Cargo without a certified agreement protecting those rights hasn't been entered into, there is no arrangement at this stage but the purchase is on the basis that yes, those entitlements will come across. A purchase without the certified agreement protecting those entitlements coming across hasn't been contemplated by the parties to date.
PN990
So, the answer I suppose in short, would depend on alternative commercial arrangements being entered into between Patrick and the Administrator for the sale on the basis that there was no certified agreement being made today and there would have to be some other arrangement.
PN991
THE COMMISSIONER: The other thing too is this. I'm not sure if this goes to the no disadvantage test. Mr Reitano, will assist me I'm sure. But as it stands now, if the administrator terminates these employees and they're not in a situation other than terminating and being picked up immediately by Patricks, these employees wouldn't necessarily be able to secure the Ansett deal would it. I mean the government guarantees and all that don't go to the certified agreement levels, do they? Nobody knows.
PN992
MR OGILVIE: I'm not sure of the answer to that question, Commissioner. Ms Tisdale just said they would be redundancy is only up to community standards which - - -
PN993
THE COMMISSIONER: Sorry?
PN994
MR OGILVIE: Redundancy will only be protected up to community standards.
PN995
THE COMMISSIONER: That's TCR, isn't it?
PN996
MR OGILVIE: TCR. Yes, thank you, Mr Ogilvie. Yes, thank you, Ms Tisdale. Yes, Mr Reitano?
PN997
MR REITANO: Commissioner, could I deal with three quick points which I don't want to say much more about but I just want to get them out of the way while they're fresh in my mind. The first matter is you were taken to the Tesna transcript and decisions of Senior Deputy President Watson and my friend anticipated, as he put it - I suggest because I told him, that I was going to say the point wasn't argued. What I didn't tell him and I didn't mean to be discourteous about it but I didn't develop what I was going to say to him, was to say, in addition there was no contradictor in those proceedings. There was no-one who came along to the commission in the Tesna proceedings and said, don't do it. That does make a difference in the nature of the proceedings as they went forward. It was all done - - -
PN998
THE COMMISSIONER: It should not.
PN999
MR REITANO: Ordinarily, it should not but if no-one's there raising innovative and brilliant points, then they don't get dealt with.
PN1000
THE COMMISSIONER: Look, I appreciate that and I also know that Queens Cross, is not quite Patrick. Tesna might be a better comparison, but anyway, I see that - - -
PN1001
MR REITANO: I've said what I need to say about that. The second thing my learned friend said is that he referred to the statutory declarations that the commission had before it and said that both the deponents say that the agreement's passed the no disadvantage test. Well that's not true. In either case, it's not true. One refers to the Transport Award and suggests that it passed the no disadvantage test. And that's at question 7.1 and 7.8 and that person I should identify. That's Mr Allan. And the other one, as best we can understand it, does not answer the question because at 7.1, is asked what the designated award is or are and says yes and doesn't fill in the name of any such award and later on I think or at some point of the one I've identified the question by paragraph. It says that it passes the no disadvantage test.
PN1002
So that is not much use to the Commission. The third matter that I can get out of the way quickly is to say this, we were cautious on Tuesday and we are equally cautious today to say that the Commission should not accept assertions from the bar table. There are real issues between some of the matters that my friend from the TWU put to the Commission about the participation and/or invitation that was extended to employees. I know four employees who were participating or invited to participate and that is because I have four employees instructing in the Commission today. We would strongly urge the Commission not to accept statements from the bar table in the absence of evidence.
PN1003
Could I then go to perhaps the more important points and they concern the "no disadvantage" test. Firstly, could I ask the Commission, well I won't ask the Commission I think the Commission will well remember, that on Tuesday the Commission issued a certificate or a determination It is headed, we were provided with a copy this morning in what I might call the associated proceedings rather than reading out the number that designated three awards as the designated awards as being appropriate for deciding whether the agreement passes the "no disadvantage" test. The Commission knows that those three awards are the Transport Workers Awards, The Clerical and Administrative Award and the Salaried Staff Award and I only quote it because it encapsulates exactly what we say is the task before the Commission. At the conclusion of the certificate the Commission said:
PN1004
The designated Awards are Awards under the Act which regulate terms and conditions ...(reads)... of persons engaged in the same kind of work as that of persons under the agreement.
PN1005
Now, that is over and done with. Those proceedings were finished on Tuesday. That was the finding of the Commission, the file is presumably closed lest there be perhaps some appeal. The Commission has designated the awards. The Commission's task following from tuesday and today is to apply the "no disadvantage" test which is having regard to those three awards and the "no disadvantage" test appears in Section 170XA of the Act and is quite simple and straightforward at least in the words that it uses where it provides an agreement passes the "no disadvantage" test if it does not disadvantage employees in relation to their terms and conditions of employment. Subsection 2 provides subject to three exceptions that are presently relevant as I read the Act:
PN1006
An agreement disadvantages employees in relation to their terms and conditions of employment ...(reads)... under relevant awards or designated awards.
PN1007
The words of course that are important there are designated awards. There are three such awards here. So the test that the Commission has to apply is not as my learned friend, Mr Ogilvie, would have it which involves the Commission in crystal ball gazing into the future. Or as the witness I think ultimately agreed, speculating. The question is the measure the agreement against the awards as they stand today.
PN1008
I need only remind the Commission of a point that I haven't run, that I think Mr Ogilvie anticipated that I might run, and that is that the awards have not been increased in accordance with the last national wage case. I am stuck with the awards as they are today. As much as everyone else is I am stuck with the rates - as unfortunate as that may be. Likewise, on the other side of the coin, my learned friend is stuck with the agreement in the form that it has been made.
PN1009
It is those two things and the terms and conditions provided by those awards that the Commission is required to assess in determining whether overall the terms and conditions reach the lofty heights of the no disadvantage test or not. We contend that they do not. We contend for a number of reasons that I developed on the last occasion that they do not. In particular we can deal in one fell swoop with the upper echelons of the Salaried Officers Award because the rates of pay when one does an assessment - I'm going to hand a copy of a document to the Commission that will hopefully assist the Commission. The rates of pay in the Salaried Officers Award are so high in comparison to what's provided for by the agreement that there can't be any real question in our respectful submission as to passing the no disadvantage test there.
PN1010
Could I hand to the Commission a document - two documents - and I take full responsibility for these so if there are mistakes they are all mine. They are documents that I have prepared of what I might describe as the marginal classifications. The first document is headed Level 5, Clerks Award.
PN1011
PN1012
MR REITANO: And the second document is Level 8, Transport Worker
PN1013
PN1014
MR REITANO: Now, I don't want to waste a lot of time going through the documents. The Commission can go through the documents at its leisure but could I point out the basis on which the document has been prepared? Referring to level 5 Clerks Award first up. You will see there that 19.1 refers to the minimum wage rate. That is one thing that I couldn't possibly have got wrong. I have just transposed the figure from Award to there.
PN1015
The next four question marks are allowances but I have made no assumptions about those allowances, at all. I've let them go through to the keeper as it were. I've tried to be fair in the way that I have looked at these things but perhaps there might be some criticism. I have assumed that there are four transport allowances under 23.4.1 and one transport allowance under 23.4.2.
PN1016
I have not claimed any of the next two allowances and I have put N/A where the uniform allowance is because there is a provision under the agreement that says that the company provide uniforms so the allowance wouldn't apply. The First Aid Allowance, you heard from the witness this morning that there might be some requirement for that, but nonetheless, I've put a question mark. Then probably the first of the controversial entries comes into play and that is the shift loading. I've assumed the night shift loading, the highest loading. The next is the Saturday shift. I've assumed the 12 hour shift on a Saturday. I've only calculated because I'm not good at these things, I've only calculated the shift penalty as it were on the minimum wage rate. I haven't calculated it on the loading. I'm just not sure what the correct approach is and I'm sure everyone who does these types of things every day is better placed to do it than I am.
PN1017
But nonetheless it may be said that suggesting that someone is going to work every Saturday is unreal for the reasons the Commission pointed out earlier, maybe it is. The shift allowance I've dealt with there, then I've assumed once again a Sunday shift every week. So they're the two controversies. If someone wants to throw darts at this document, that's where they're probably best able to do so. Then I'd assume two hours overtime at the minimum wage rate. I've left out a few of the allowances that I've included and there's about five other allowances where I put question marks.
PN1018
I've assumed annual leave loading which I think goes without saying. I've assumed five weeks of annual leave at the ordinary rate, that may not be correct. On the award there's an issue as I read it as to whether you include some of the loadings for the annual leave time, but I've just used the ordinary rate and I've assumed four public holidays, noting that there are 11 in the award. So, once again, I've tried one-third, because nine of the public holidays are double time and two are double time and a half. So I've said, well, I'll take one-third of the public holidays. You will see there question mark time seven, it's the seven public holidays I haven't allowed for.
PN1019
Now, if one does this arithmetic exercise, swings and roundabouts and the like, one gets to a figure of $60,500 plus lots of question marks. Monetarily, the agreement at level 5 is not looking quite as attractive as it might look at first blush by just looking at base rates. I accept and I put it at the forefront that there are some assumptions in this document that might not be attractive to the Commission, but nor is it fair, we say on the other side of the coin, as it were, to ignore all of the question marks.
PN1020
Bearing in mind for example, in respect of public holidays the all in rate that is under the agreement would wipe out every public holiday so a person could theoretically work eleven public holidays under the agreement and they'd get nothing additional because they're caught by the all in rate. I've only allowed for one third of them.
PN1021
Now, I won't go through the Transport Worker document: much the same approach, picked up a few allowances, tried to do something with the shift work and the calculations there. The Commission will see in both cases on that analysis, which is a fairly simple one, both the ACE2 and ACE1 rates are lower.
PN1022
Next, when one deals with these awards and I've already made my submission about the Commission not speculating, what one needs to do is look at the no disadvantage test today but next, when one looks at the awards and the agreement and looks at terms and conditions of employment for the same kind of work that's being performed, necessarily, one cannot ignore the fact that both awards whether it be the Transport Workers Award or the Clerical Award or the Salaried Officers Award provide a career progression for employees. One can see that by the incremental salary classification structure in both awards which leads to an incremental increase in salary over time.
PN1023
Loud and clear, I don't think the Commission nor anyone could doubt the proposition reducing a 9 or an 8 level classification structure or potentially, perhaps, even a 17 level classification structure because both awards seem to work together but an 8 or 9 classification structure down to 2 in this agreement substantially reduces the value of terms and conditions of employment as they relate to career progression and promotion, skill development and the like and there's more to life than money in our submission; providing employees with meaningful work and meaningful career structures, meaningful training and promotion has been something that this Commission has been intimately concerned about for many many years.
PN1024
We say that is something that the Commission needs to, as it were, throw into the wash when it comes to applying the no disadvantage test. I already referred the other day and I don't repeat what I said, about the protections that are inbuilt into the award in the terms and conditions that apply to employees in respect of shift work and rostering and other matters, casual employment and the like and I don't repeat those.
PN1025
When one compares them in my submission, particularly in respect of the shift protections and the rostering protections, it is clear that an employee is at the mercy of a clause such as that which my friend Mr Ogilvie referred to that simply says that there will be a balance of the business and an employee's right to fair and reasonable lifestyle as 15.2 of the agreement does. The protections that are built in to the awards are there for good reason and they define, particularly in the terms and conditions of employment that are provided to an employee, what those protections are.
PN1026
Presumably, to achieve the end that is expressed in fairly broad terms in the agreement. We strongly caution against an approach that says, speculate where these people might be. The Commission should approach the application of the no disadvantage test on the basis of the awards that have been designated by the Commission which deal with the kind of work that the persons under the agreement are to perform. The reason for designating those awards was precisely for the purpose of applying the no disadvantage test and in our submission it is too late in the day for anyone to cavil with what the Commission has already found to be the kind of work that persons under the agreement will be performing as my learned friend seeks to do.
PN1027
The Commission's approach should be to look at the awards, side of side of the agreement and assess in an overall sense, in a balanced approach whether the agreements pass the no disadvantage test or not. We say in monetary terms, it is unlikely that they do. Certainly in the case of the salaried officers award, we say they do not and it is clear. In the case of a number of the classifications in the Clerk's Award and I think my friend virtually conceded it, from level five up. They don't pass the no disadvantage test, in terms of the base rate.
PN1028
In respect of the transport award, there is some significant doubt about whether they pass the no disadvantage test in respect of at least a couple of the classifications, in money terms only. We say when one throws in all of the other benefits and protections that are provided by the award, it is overwhelmingly the case that this agreement does not pass the no disadvantage test. Can I say about the evidence this morning before I sit down, I don't wish to repeat what I said the other day. I have already said it. I don't have to revisit it. But can I say, in respect of the evidence of this morning that the witness was quiet frank and candid with the Commission in terms of his assessment of the work, at least in the immediate short term. That is that, come next Monday not much will change. I think we were drawing the distinction between today and next Thursday and the witness clearly, in the short term, didn't envisage that there would be a great change in the nature of work.
PN1029
Similarly, the witness was quite fair in his description of what might happen in the long term he was willing to say much would depend on how things would work out. Albeit it that we've cautioned the Commission against an approach that involves looking to the future like that, the Commission couldn't simply be satisfied on that evidence as to any reasonable or sensible application of the no disadvantage test. In my submission the best evidence is what the Commission knows and what is certain rather than what is unknown and uncertain and the one bit of evidence that the Commission has is clearly inconclusive upon.
PN1030
We say that it is not a question when one comes to apply the no disadvantage test of looking at best fits and the like, the question is one that involves the Commission looking at the award and the agreement, not best fit, not classifications, not Level 5 or Level 8 in the transport award but the awards in an overall sense. We say that in an overall sense when one does the monetary exercise, as well as the other exercise of comparing the protection, the terms and conditions as provided by the awards are far more advantageous to employees working under those awards and the Commission would not, in the circumstances, certify this agreement.
PN1031
THE COMMISSIONER: Yes. Mr Ogilvie, I know you are capable of your own arrangements but Mr Ogilvie, I don't ask you to comment on the submissions of Mr Reitano but is there any comment you wish to make as to either the maths or the assumptions in R5 and R6? I don't want to hear about whether a Level 8 or a Level 5 is fair but is there anything in the maths I should know about?
PN1032
MR OGILVIE: Commissioner, this was handed to me as to my learned friend just after the lunch break, so we haven't had any time to go through it in any detail but I think the Commission as quickly as we can, can and my learned friend did admit that he takes full responsibility for it and there are a number of assumptions made. We would say, okay, we'll go to the Level 8 transport worker, even if all of the assumptions and all of the figures that my learned friend accepts are correct, the figure he has got at the bottom is 54,781, the evidence of Mr Lutterschmidt is clearly that that a Level 8 transport worker an ACE1 and it's a 59,000 rate under the award.
PN1033
Putting that to one side I have difficulty in understanding the calculations that have been made. If you go to the Level 5 under Clerks Award which is exhibit R5, my learned friend has put in an amount of 636.8 which I assume is a minimum wage rate for working 38 hours. And on top of that has added a 12 hour Saturday shift so that is another additional 12 hours worked, added another Sunday shift which is another 12 hours worked and at 25 for 1.2 added two hours worth of overtime.
PN1034
I am at a loss quite clearly as to the way in which his calculations are being made. My maths adding up is that a 38 hour week has been added to a 12 hour shift has been added to another 12 hour shift. On its face that looks like the employer is working 64 hours. The Commission can give this document the weight that it probably deserves.
PN1035
THE COMMISSIONER: Well, we know what that means.
PN1036
MR OGILVIE: The assumptions on which this document is being based is that employees working a Saturday shift every week, a Sunday shift every week and we say it is quite clearly not correct and not with the circumstances does it exist.
PN1037
THE COMMISSIONER: Yes, I note that point but you - - -
PN1038
MR OGILVIE: I haven't had enough time to go through the documented - - -
PN1039
THE COMMISSIONER: Yes, but it's pretty simple. If somebody worked day shifts under the level 5 of the clerks award, day shift, Monday to Friday, 38 hours, they get 636 - - -
PN1040
MR REITANO: Can I interrupt the Commission, that is not how I have done it.
PN1041
THE COMMISSIONER: Okay, just explain it.
PN1042
MR REITANO: It might just be easier, in respect of the Saturday and Sunday shift. It is true to say that I have assumed Saturday and Sunday every week, I can't run away from that. The agreement permits that to be done but what I have done is where it says, can I just take Saturday as the example, where it says $100.54, that is just the penalty component. I haven't double counted the ordinary time so I have assumed a 12 hour shift at ordinary time, timed by time and a half or double time, whatever it is, and then I have taken the ordinary time out. So that is only the overtime component for being a Saturday, if that assists, and I have done the same on Sunday, I have only included the penalty component.
PN1043
THE COMMISSIONER: So this, the $636.80, the $100 and the $201, that is for the person who has worked a 38 hour week and included in that 38 hours, they have worked for 12 hours on the Saturday and 12 hours on the Sunday?
PN1044
MR REITANO: That's correct, yes.
PN1045
THE COMMISSIONER: Yes, I just wanted - - -
PN1046
MR REITANO: And I have done the same on the other document bearing in mind that there is seven day shift work. That is why I have done that.
PN1047
THE COMMISSIONER: Yes, I understand. Yes, there is nothing further?
PN1048
MR OGILVIE: My client is extremely concerned that the Commission be instructed by the way this document has been put together and the assumptions that have come into the document. We would have liked the opportunity to go through and work out the way in which these calculations have been made. We challenge, and I adopt my learned friend's position that the Commission should be very wary about assertions being made from the bar table about the circumstances which will arise.
PN1049
We would challenge the assumptions the assumptions that fall within this document particularly within the assumptions in the way it has been calculated for a Saturday shift being worked, a Sunday shift being worked and I think there is 48 weeks. I haven't had an opportunity to see whether the calculation is correct or not. I need a calculator in front of me to go through and do that. Commissioner, I am not sure how much further I can take the Commission with the document. Without having to sit down and go through it line by line I think the Commission should - - -
PN1050
THE COMMISSIONER: Yes, okay. Unfortunately, we all get stuck with exhibits which are unsatisfactory in one way or another and that is probably true for everybody that appears from time to time. Yes I propose to reserve my decision and hopefully will issue it early tomorrow afternoon.
ADJOURNED ACCORDINGLY [3.20pm]
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