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Australian Industrial Relations Commission Transcripts |
AUSCRIPT PTY LTD
ABN 76 082 664 220
Level 2, 16 St George's Tce, PERTH WA 6000
Tel:(08)9325 6029 Fax:(08)9325 7096
TRANSCRIPT OF PROCEEDINGS
O/N WT04958
AUSTRALIAN INDUSTRIAL
RELATIONS COMMISSION
DEPUTY PRESIDENT McCARTHY
AG2002/167
APPLICATION FOR CERTIFICATION
OF AGREEMENT
Application under section 170LK of the Act
by Minesite Catering Pty Ltd for certification
of Minesite Catering (Onshore Operations)
170LK Certified Agreement 2002
PERTH
10.39 AM, THURSDAY, 4 JULY 2002
Continued from 27.6.02
PN61
MR ADAMS: I appear on behalf of Minesite Catering.
PN62
MR LLEWELLYN: I appear on behalf of the Australian Workers Union and also on behalf of members of the union who - I think copies of the authorities have been sent through to the Commission.
PN63
THE DEPUTY PRESIDENT: So, Mr Llewellyn, you are - - -
PN64
MR LLEWELLYN: Seeking to intervene.
PN65
THE DEPUTY PRESIDENT: - - - what are you seeking? Leave to intervene, are you?
PN66
MR LLEWELLYN: Yes, sir.
PN67
THE DEPUTY PRESIDENT: Under what guise?
PN68
MR LLEWELLYN: Both under the fact that we wrote to the applicant in this matter on 15 April informing the applicant that we sought to be bound by the agreement and also on the authority from employees who are bound by the agreement, representing those persons, in terms of their interests in relation to the agreement. And I understand letters from those persons were provided to the Commission last Thursday.
PN69
THE DEPUTY PRESIDENT: Yes, that has been provided. So what you are seeking is intervention on behalf of those persons, are you?
PN70
MR LLEWELLYN: That is correct.
PN71
THE DEPUTY PRESIDENT: So, you have got a request from individuals under 170LK(4) that you represent them. Will be subject of the agreement. You are entitled to represent those persons. And they have requested you to represent them?
PN72
MR LLEWELLYN: That is correct. And we confirmed that in writing to Mr Walsh on 15 April 2002.
PN73
THE DEPUTY PRESIDENT: Okay. So, you are seeking intervention under 43(2)(a)?
PN74
MR LLEWELLYN: Yes, sir.
PN75
THE DEPUTY PRESIDENT: Mr Adams, do you have any comment?
PN76
MR ADAMS: No, your Honour. As we discussed last week, on the assumption that - the paperwork is in order with respect to the authorisations that are necessarily required under the Act, of the union. In terms of the request, I suppose, for the intervention to take place and the authority for the union to make submissions on behalf of those employees, there is nothing that I can do, as far as I am aware, under the Act at least anyway to oppose the intervention.
PN77
THE DEPUTY PRESIDENT: Yes, thank you. Yes, well, I am satisfied that all of the requirements for the AWU to intervene on behalf of those employees, that it has the authority and have been requested to intervene on their behalf, have been satisfied. So, to that extent, under the provisions of 43(2)(a), Mr Llewellyn, you are granted intervention. Are you, as a union, also seeking to be bound to the agreement should it be certified?
PN78
MR LLEWELLYN: Yes, we are. And that was contained in the letter I wrote to the employer.
PN79
THE DEPUTY PRESIDENT: Yes.
PN80
MR LLEWELLYN: Well, our members first approached us and sought that we do it. Unfortunately it is a somewhat unusual position, because our members have approached us as a result of the agreement, on its face, appearing to result in a reduction in their wages. Have asked us both to appear to oppose on the basis that it doesn't meet the no disadvantage tests but should the Commission find that it does, then seek to be bound so we can represent their interests into the future.
PN81
THE DEPUTY PRESIDENT: Yes. So, in effect, you are wearing two hats. One is, if, you like, an agent for the employees to make submissions on their behalf about the agreement itself and then as a union, again at the request of employees, that the union be bound by the Award - by the agreement should it be certified.
PN82
MR LLEWELLYN: That is correct.
PN83
THE DEPUTY PRESIDENT: Okay. Thank you Mr Llewellyn for clarifying that.
PN84
MR LLEWELLYN: Sir, I should also point out I have provided to your Associate yesterday, and also Mr Adams yesterday, a copy of the no disadvantage test. I have applied it - sent it through to you electronically.
PN85
THE DEPUTY PRESIDENT: Yes I have a copy of that.
PN86
MR LLEWELLYN: I have - I should raise now and I note that there is an error in it in the fact that I used the later rate rather than the current one so the 1309 is not correct, it should have actually been 1297.
PN87
THE DEPUTY PRESIDENT: Oh well, I'm sure we will - - -
PN88
MR LLEWELLYN: Now, unfortunately, I haven't changed that since I only just picked it up this morning but it will make a difference although it is slight.
PN89
THE DEPUTY PRESIDENT: I'm sure we will get to that. I think for the purposes of the proceedings this morning I will need a general outline I think, Mr Adams, of the process. Then I will need an outline of the content of the agreement to enable me to be satisfied whether it satisfies the no disadvantage test or not. In that outline I think I will look at it in two parts. One, the remuneration part, which we will look at last, and prior to that the other elements of the agreement, some of which I have some questions over.
PN90
So perhaps if you could, firstly, address me on the process that has been gone through in order that I can be satisfied that the notification requirements and opportunity to respond etcetera have been complied with, then if we can go on to the content of the agreement. Is that satisfactory to you?
PN91
MR ADAMS: Yes that is satisfactory, your Honour, thank you. Perhaps by way of introduction if I can begin by indicating that the application before the Commission is launched pursuant to section 170LK of the Act. It is an agreement between Minesite Catering and employees at a number of sites within Western Australia who are currently employed by the company to perform essentially catering and laundering functions. The process by which the agreement was brought to the attention of employees and the company's intentions, I hasten to add with respect to the making of the agreement, is probably best drawn out through evidence of Mr Walsh, the Operations Manager from the company.
PN92
And through that evidence I think it will become clear in relation to the degree or the extent of detail that was gone into by the company with respect to what its intentions were, how the proposed agreement was intended to operate, the conditions which attached to the agreement, the consultations which took place between the employees at all of the sites and the company, the subsequent discussions which were sought to be had with the union following the representations made by it to the company on 15 April, and also in the context of that evidence I think it would be appropriate to hear from Mr Walsh about the conduct of the ballot, the process that was followed in relation to that, how the vote was counted, how they satisfied themselves as to the proper process with respect to the ballot and the actual count.
PN93
THE DEPUTY PRESIDENT: Well, Mr Adams, I don't - I'm not sure that that is totally necessary. I mean there is a statutory declaration here that identifies that the process appears to have been complied with unless there are - Mr Llewellyn, are there issues that any of the employees you represent have concerns about with respect to the process, they want to bring to the attention of the Commission?
PN94
MR LLEWELLYN: They do, sir. I haven't seen the statutory declaration, unfortunately, so I am not sure what is said about that in the process but essentially we raised two concerns. Firstly, is that it is our understanding that a number of employees of Minesite Catering are actually covered by Australian Workplace Agreements and that the vote was taken place by all employees. Now I can't see anything in the Act that allows a collective agreement to override an Australian Workplace Agreement that is in force prior to the agreement so we have some concerns about whether employees are, in fact, covered by Australian Workplace Agreements and did participate in the vote.
PN95
THE DEPUTY PRESIDENT: Well, if I could cut you off then, Mr Llewellyn there, perhaps Mr Adams it might be prudent if you did - if you intend to lead evidence to leave that evidence and allow the evidence to examine these issues.
PN96
MR ADAMS: Well I will, your Honour, but before I do that, the letter that was sent to the company and to the Commission on 15 April by Mr Llewellyn essentially - - -
PN97
THE DEPUTY PRESIDENT: Just let me find that. Yes.
PN98
MR ADAMS: In the middle paragraph reference is made to concerns with respect to the agreement passing the no disadvantage test and also with respect to the conduct of the ballot process which is why it was my intention to lead evidence about that aspect of it. If, in fact, the concerns that the union has are directed primarily to the question of eligibility to vote, I can indicate to the Commission that since the last time we were here I have spoken to Mr Llewellyn about that concern and we have subsequently been in touch with the employment advocates office and we have ascertained and we have a letter from the employment advocate here in Western Australia which indicates that, at this point in time, there are no employees of the company who are engaged on Australian Workplace Agreements which are in term.
PN99
There are some employees who are currently covered by AWAs which have passed their nominal expiry date but, as at today's date, there is nobody employed by the company who would, on the face of it, be ineligible to vote with respect to the 170LK.
PN100
THE DEPUTY PRESIDENT: What about at the date of the ballots?
PN101
MR ADAMS: The same situation prevailed at the date of the ballot, your Honour. It has been that way for some time. I have a letter from the employment advocate which I will tender for you.
PN102
PN103
MR ADAMS: The letter, which is signed by Rod Dewsbury, who is the Regional Manager for the Office Employment Advocate, indicates that all of the approved AWAs for Minesite Catering reached their nominal expiry dates last year.
PN104
THE DEPUTY PRESIDENT: Got their nominal dates, I mean, whether he means nominal expiry dates, does he?
PN105
MR ADAMS: Yes he does.
PN106
THE DEPUTY PRESIDENT: Yes.
PN107
MR ADAMS: So if the concern that the union has is directed essentially at the question of eligibility, one would hope that the letter from Mr Dewsbury would overcome that concern and if there aren't any other queries with respect to the process at least is so far as the ballot is concerned, then I will just make submissions in relation to - - -
PN108
THE DEPUTY PRESIDENT: Well I think that - I mean, if the intent of your presenting evidence was to outline was the process was and the only issue that Mr Llewellyn has is who was entitled to vote or not, then I don't think it is necessary to go through that process. It is outlined in the statutory declaration, would appear on the surface of it and, subject to what you say, that the Act has been complied with with respect to the making of the agreement. It is then an issue of the content of the agreement with the one possible exception of whether those people were entitled to vote, that did vote. So perhaps if I could turn to you, Mr Llewellyn.
PN109
MR LLEWELLYN: Sorry, sir, there was one other issue on process I didn't get to and that is the explanation of the agreement to the employees. Again, I haven't seen the statutory declaration but we also have some concerns as to what was said to the employees in relation to the agreement and the voting on the agreement and the other concern is, we have a member whose first language is not English who approached us in the office following being told he had to vote and believed what he was actually entering into was an AWA because he expressed his dissatisfaction with the fact that he had been required to sign it.
PN110
Now that leads me to believe that things weren't explained to him as they should have been, as is required under the Act and particularly in relation to those requirements. I think it is under section 170LT where there are prescribed persons but we have some concerns in the way in which the employees were informed, particularly on the basis that we have employees who are paid currently in excess of what is prescribed in the agreement to come into force.
PN111
THE DEPUTY PRESIDENT: Yes, well, I mean section 170LK outlines the requirements on the basis of what is in the statutory declaration. Those requirements have been met, those requirements being to take reasonable steps to ensure that there is at least 14 days notice, take reasonable steps to ensure that there is access to the agreement, that notice is also required to state if persons whose employment will be subject to the agreement as a member - well that is the notice, but those steps would appear what is in the statutory declaration to have been complied with, as well as the sub (7) I guess is what you are saying is that ensure that the terms of the agreement are explained.
PN112
MR LLEWELLYN: Well that is, unfortunately, the part I can't comment on. As I said, I have not seen the statutory declaration but there are - I know there are provisions in the statutory declaration in terms of 170LK for March 28 which requires the employer to specify, for example, how he has taken cognisance of persons listed in 5.4 and that is women and persons whose first language is not English under the age of 21 years, Aboriginal, Torres Strait Island, disabled person, part-time persons and casual persons. Now the concern we simply raise is that we have had queries from employees whose first language is English, have informed us as to what they were told and that is not consistent with what is contained in the agreement.
PN113
And we have had a person who is a member whose first language is not English and his command of the English language is not good, informed me that he understood he was entering into another Workplace Agreement. And, on the face of it, and as I explained to him, what he had done is actually voted for a certified agreement, not entered into another Australian Workplace Agreement.
PN114
THE DEPUTY PRESIDENT: Are they workers that you have got - they have notified you and they are workers that have requested you to intervene?
PN115
MR LLEWELLYN: Two of them are and they are the persons whose language is - first language is English and they have provided me with what their understanding of the calculation of their rate of pay is and it doesn't fit with the agreement.
PN116
THE DEPUTY PRESIDENT: Yes but that is not the question of the process. What I am trying to identify here, Mr Llewellyn, is not the comparison but the notification, the advice and the explanation of the proposed agreement.
PN117
MR LLEWELLYN: And that is what I am putting to you sir. In terms of the explanation, employees were told how, for example, the annual rate was to be calculated.
PN118
THE DEPUTY PRESIDENT: Yes.
PN119
MR LLEWELLYN: When you apply the calculation that they were informed which caused some employees to vote for the agreement, you get a rate far in excess of that which is contained in the agreement. Now to tell an employee that to secure a vote is misleading and does not explain the terms of the agreement to the employee.
PN120
THE DEPUTY PRESIDENT: Well perhaps if I can - I will turn to you, Mr Adams. It appears that there is going to be a challenge by the people that Mr Llewellyn is representing about the compliance with the process so I am in your hands as to how you want to deal with this, either reliance on the statutory declaration or, as I think you first indicated, may be call evidence with respect to that.
PN121
MR ADAMS: Your Honour, I think the best way will be to hear from Mr Walsh to amplify some of the statements made in the stat dec and then, of course, if Mr Llewellyn has some issues re aspects of that, then he is entitled to cross-examine Mr Walsh. I think it is the only way we are going to get to the bottom of who said what to who and when and what they thought they were hearing. I am mindful of the fact that, in order for the agreement to be certified, you have to satisfy yourself that at least in so far as the process and the no disadvantage test are concerned that they are all above board.
PN122
THE DEPUTY PRESIDENT: Yes.
PN123
MR ADAMS: And in order to achieve that I think it would be remiss of me to not, given the fact that Mr Walsh is here, to hear from him.
PN124
THE DEPUTY PRESIDENT: Yes.
PN125
MR ADAMS: So without further ado - - -
PN126
THE DEPUTY PRESIDENT: Yes, I was trying to expedite it but with dismal failure, I'm afraid. So if you want to call Mr Walsh - I will, Mr Llewellyn, confine at this point the - unless you have a wish to expand on it, Mr Adams, but confine the evidence to compliance with the process if there are issues associated with the assessment of advantage and disadvantage, I think that can best be done by way of submission. If you are happy with that - I see you nodding. Thank you Mr Adams.
PN127
MR LLEWELLYN: Sorry, sir, I should answer for the record. Yes, sir, I think no disadvantage is clear in the issue of submission, it has nothing to do with evidence.
PN128
THE DEPUTY PRESIDENT: Thank you.
PN129
PN130
MR ADAMS: Right Mr Walsh could you, for the record, state your full name and your position title at Minesite Catering please?---Anthony Thomas Walsh, Operations Manager.
PN131
And in introductory or simple terms Mr Walsh could you just explain to the Commission what your involvement was in relation to the company's intentions with respect to the proposed agreement?---Yes we wanted our people to move from what was an AWA, you know that had lapsed into a 170LK agreement.
PN132
Right. I have a document which I would like you to have a look at, if you wouldn't mind please. Could you just identify that document for the record please?---Yes, this is a letter I sent to every member of staff that was eligible to vote on the old K170 on 15 March 2002.
PN133
And would you just read to the court the second paragraph of that communication?---
PN134
To help us meet these future challenges it is our intention to move away from our current Australian work place agreement to a collective employee agreement known as a 170LK. While it is a collective agreement the agreement is made directly with employees and thus remains consistent with Minesite's objective of dealing directly with its work force.
PN135
Now to whom was that letter sent?---Members of staff.
PN136
Was there anybody excluded specifically from the mailing list or did everybody get a copy; everybody who would be otherwise subject to the agreement?---Yes.
**** ANTHONY THOMAS WALSH XN MR ADAMS
PN137
Without exception?---Everybody who would have been covered by the agreement was given a copy of this letter, yeah.
PN138
Right. Was any consideration given at the time the letter was drafted, Mr Walsh, to the fact that, and in accordance with the statements you have made in your statutory declaration that you do have a number of employees who are from a non English speaking background. In other words, what steps did you take if any to ensure that everybody who received the letter was able to read and understand the content?---Yeah - these people were spoken to individually, anybody that we thought would have problems understanding the letter was spoken to by myself or the General Manager of the company.
PN139
In terms of the follow up from that letter, Mr Walsh, perhaps if you could just explain to us what were the next steps?
PN140
THE DEPUTY PRESIDENT: Well, prior to, are you tendering that, I will mark it?
PN141
MR ADAMS: I am sorry, your Honour. Yes, I am. I do have a couple more here but, yes, if I can enter that as an exhibit.
PN142
PN143
THE WITNESS: After receipt of this letter it was explained to people what we were going to do. Following that we sent everybody a copy of the - 170LK agreement along with a notice of our intent.
**** ANTHONY THOMAS WALSH XN MR ADAMS
PN144
MR ADAMS: Did you undertake any visits to site, what was the process with respect to discussions with employees?---What we did, we - myself, the General Manager of the company and a couple of our Area Managers endeavoured to get to every site that we service over a period 2 to 3 weeks. spoke with all the employees on site, then we tried to catch up with other employees who were off roster at the time because we run a 2/1 roster and invited our staff that missed out on meetings on site to come into the office to - to have the agreement or - or you know, deal with them one on one with myself or anybody else in the office to - to explain.
PN145
Did you make - did you or your management team make yourself available during these site visit for one on one consultation after your presentations?---Yes.
PN146
Did anybody come and talk to you about concerns or apprehensions about the proposals?---Oh, I wouldn't say concerns or apprehensions. Main - mainly questions that - that they found ambiguous or they couldn't understand them.
PN147
How much time did you allocate, Mr Walsh, for these presentations and follow up discussions with employees on a site basis?---Well each site visit I would arrive on site, stay overnight till the next day and make sure everybody had an opportunity to speak either collectively or individually.
PN148
Did everybody or was everybody in possession of a copy of the proposed agreement at the time you visited the site?---Yes.
PN149
All right. Well, if I could show you another document then, please? Can you just identify that document for the record please, Mr Walsh?---Yeah, this is a - a letter that was sent with the agreement telling people of our intent to make the agreement.
**** ANTHONY THOMAS WALSH XN MR ADAMS
PN150
And what other information does it disclose, in particular, with respect to salaries?---Each individual, as you can see by that copy, it was addressed to them individually and their current annualised rate of pay was - was indicated on the letter and it was indicated after that, that - that they would receive a 4 percent pay rise on top of that amount.
PN151
What was the purpose of indicating to employees in that letter that you have before you now, their current annual salary?---Because on - there is a - actually on the agreement there is a minimum rate of pay for that - for each position that that person may hold. We were indicating that this is their current rate of pay and - yeah, I - I - that was it. You know, we - we were just trying to define between the basic rate that was - the minimum rate I should say, that was on the agreement compared to the rate that they are actually on at the moment.
PN152
Now, to the best of your knowledge, perhaps before I get to that, the second letter that you have before you now, was that sent to everybody who received a copy of the first letter?---Yes.
PN153
To the best of your knowledge were there any rates of pay set out on these individual letters, the second letter, that were less than the rate that was set out in your proposed agreement?---No.
PN154
Did you discuss that aspect of the letter during your site visits?---Yes.
PN155
Were any concerns raised by anyone at any stage in the course of those meetings that in fact their annualised salary was incorrect or did you - said something in the letter that was in error?---No.
**** ANTHONY THOMAS WALSH XN MR ADAMS
PN156
THE DEPUTY PRESIDENT: Can we just take a moment. There is some noise from some drilling in the building going on. I am afraid I did not hear that question, Mr Adams. Can we just adjourn for 5 minutes. The matter is adjourned.
SHORT ADJOURNMENT [11.07am]
RESUMED [11.15am]
PN157
THE DEPUTY PRESIDENT: Yes, my apologies for that. Apparently there was someone drilling a floor above and no one could hear themselves think and I didn't think it was worthwhile trying to continue under that circumstance, Mr Adams.
PN158
MR ADAMS: Thank you, your Honour.
PN159
THE DEPUTY PRESIDENT: So, perhaps if you can continue. Sorry for that, Mr Walsh.
PN160
THE WITNESS: Not a problem.
PN161
MR ADAMS: Mr Walsh, I was asking you, in the context of the meetings that you had at site and the discussions that you had with staff there, were any questions raised of you or other people on your management team in relation to the amount of money that was indicated to them in their letters which was their annual salary?---Yeah, many questions were asked about the minimum rate out - stated on the agreement and their rate of pay that was stated on the letter of intent and that was explained to - to most people or certainly everybody that asked the question and it was explained in general group discussion.
**** ANTHONY THOMAS WALSH XN MR ADAMS
PN162
And you indicated in response to a question I asked you earlier that there were meetings arranged or access to people on your management team was made available for people who were off site as well?---Yes.
PN163
At the time you did the presentations. Did you meet with anybody in the officer here in Perth?---Yeah, some individuals came in just for clarification of certain points and - - -
PN164
All right, now, to summarise I suppose, where you got to the end of your roadshow or your presentations with your staff, how would you describe your understanding as to the level of understanding of your employees with respect to what it is that you were proposing to do and the extent to which you would overcome any concerns or issues that they had?---Well, the - the feeling we got was that - that the majority of people understood what we were on about. The - the few people who didn't, we endeavoured to revisit sites, catch up with them, telephone conversations here, there - all around the place; explaining to people exactly what it was that was on the table. I didn't - I don't recall at the end of it anybody having been under duress to vote thinking that the - that they did know what they were voting on.
PN165
PN166
MR ADAMS: All right, one more document, thank you Mr Walsh, I would like you to have a look at and identify for the court, please?---Yeah, this - this letter was faxed up to site when we were certain that everybody had had the - the 14-day notice period and I think it was extended - well, I - I know it was extended way beyond 14 days to cover the - the 3-panel R and R roster that we run and I think it was faxed off at 22 April; printed on here the day it was faxed and this - this notice was - was made available to all members of staff on site. Posted publicly as well.
**** ANTHONY THOMAS WALSH XN MR ADAMS
PN167
Right. Now, in that notice, Mr Walsh, mention is also made somewhere in there if you could identify for the court the issue how the rates of pay are structured in the agreement?---Yep. Item 2.
PN168
What does it say?---
PN169
If this agreement is certified all members of staff will receive a 4 percent pay increase based on your current rate of pay (not on the minimum rate stated in appendix I) to take effect from 1 May 2002.
PN170
And to the best of your knowledge, there was no misunderstandings about any aspect of that?---I did not receive anything direct, neither did any of my managers to that effect.
PN171
Following the issuance of this third letter. All right.
PN172
PN173
MR ADAMS: Now, subsequently, Mr Walsh, did you receive any representations from anyone other than your employees; in other words, a union or association of employees in response to any of that paperwork or those letters?---Other than - other than the - the letter from Mr Llewellyn, dated 15 April.
PN174
I don't have a copy of that to enter as an exhibit, your Honour. I am assuming that you have a copy?
**** ANTHONY THOMAS WALSH XN MR ADAMS
PN175
THE DEPUTY PRESIDENT: What date was it?
PN176
MR ADAMS: Mr Llewellyn has kindly provided me with a copy, so if the Commission doesn't have one, I will - - -
PN177
THE DEPUTY PRESIDENT: It might be neater.
PN178
MR ADAMS: Thank you, Mr Llewellyn.
PN179
Have you seen that letter, Mr Walsh?---Yes.
PN180
What did you do in response to the letter?---I rang Mr Llewellyn just to - to find out what his - what did he say - what his concerns were.
PN181
PN182
MR ADAMS: Were any discussions had, Mr Walsh, between you and Mr Llewellyn is response to this letter?---I asked Mr Llewellyn what his concerns were on behalf of his members and he said - oh, he was a bit vague, said he had a couple of concerns and he would like to catch up and we could have a talk about it some time.
PN183
And did you do that?---No. We were never able to fix a date.
**** ANTHONY THOMAS WALSH XN MR ADAMS
PN184
How many attempts were made to fix a date in order - - -?---To my recollections, I made 3 phone calls to Mr Llewellyn - I - I organised 3 meetings but we couldn't arrange to get together. I also rang Mr Llewellyn's office on a number of occasions to find out but I was told he was away on - on business in the North West.
PN185
Now, just in respect of the timing of the receipt of this letter, where does that sit in relation to the conduct of the ballot and the voting process?---I think this letter turned up, to the best of my memory, between all members of staff getting a letter of what we refer to as the second letter, along with a copy of the agreement. This letter turned up between that and the letter faxed on the 22nd of the 4th.
PN186
So, the ballot that the 14-day period and the subsequent ballot had not commenced or the ballot had not commenced at the time you received the letter from the AWU?---Yeah, this letter came before this notice went out.
PN187
Right. So, despite a number of attempts by you to get in touch with Mr Llewellyn to ascertain what their concerns were, you were unable to find a suitable time for both of you to meet so at the time the ballot was conducted you were unaware of what the union's concerns were?---Yeah.
PN188
Were you aware of any concerns that were held by your employees following your site visits prior to the conduct of the ballot?---No. We were - we were comfortable with the fact that we had answered every question that was asked of us and - and nothing more was forthcoming from members of staff.
PN189
Now, just in relation to the degree of comfortableness you say you had in relation to dealing with concerns and queries from your employees, are you satisfied that you represented or answered or responded to questions on behalf of, or posed to you by your employees, in a manner which they would understand having regard for their ethnicity?---Oh, very much so, yeah.
**** ANTHONY THOMAS WALSH XN MR ADAMS
PN190
You are in no doubt as to the fact that people would have understood what your response to their queries were?---I - I am quite sure, yes.
PN191
All right, well just moving along then, I think it would be appropriate, Mr Walsh, if we could just conduct our attention to the conduct of the ballot itself. You say that the exhibit A4, I think, your Honour, the third letter to employees where reference is made to a ballot paper and the voting process; can you just describe what the process was that was gone through with respect to the sending out of the ballot papers and the voting process?---Well, as - as explained in this letter, people were asked to vote by - everybody received a set of envelopes and a voting slip and they were instructed as follows to - to actually tick one box only and place it in an envelope marked, Ballot Paper.
PN192
Place ballot paper inside largest stamped addressed envelope, one ballot paper per envelope only, sign your name legibly on rear of large envelope and hand it to your manager for forwarding to Perth.
PN193
And just something to say that the process was strictly in line with secret ballot procedures.
PN194
How - I am sorry, continue on?---And that the - the votes would be counted in Perth in front of a witness.
PN195
Right. And could you just describe for us briefly how that process continued?---Yes. Once all the votes were - were collected at the offices of AMMA in Perth, I was present along with officers of AMMA and 2 independent witnesses from the Minesite Catering work force who witnessed the ballot and - and filled in a stat - stat dec to that effect.
PN196
And what was the outcome of the ballot without being precise on the numbers?---It was approximately 80 percent in favour. I - if I remember, at the time.
**** ANTHONY THOMAS WALSH XN MR ADAMS
PN197
Eighty percent of how many votes?---I think it was about 130.
PN198
And to the best of your recollection, how many letters or how many ballot papers did you send out?---Approximately 170.
PN199
Of which there are 130 votes cast?---Yes.
PN200
Of which 80 percent or there abouts voted in favour?---Yes.
PN201
So, up until the first hearing in relation to the certification of this agreement last week, Mr Walsh, you had not had the opportunity to meet with the AWU at any stage to discuss the concerns it had about the ballot process or eligibility or otherwise for people to vote or participate in the ballot?---No.
PN202
All right. Thank you, your Honour. I have nothing of Mr Walsh further at this stage.
PN203
PN204
MR LLEWELLYN: Thank you sir.
PN205
Mr Walsh, in relation to the phone conversation that you had with me originally, that was prior to receiving the letter that is in as exhibit A5, 15th?---Your letter came in between your letters 3 and 4.
PN206
No. Sorry, what I asked you is, you and I had a phone conversation prior to you receiving that letter about this agreement, did we not?---As I recall, I only spoke to you on receipt of this letter.
**** ANTHONY THOMAS WALSH XXN MR LLEWELLYN
PN207
All right. You don't recall the issue being raised with you, that we had a problem with the ballot process because employees weren't getting 14 days?---No, that was - that was long after that letter came.
PN208
Was it?---Yeah.
PN209
And that same issue was raised with Mr Flood from AMMA?---Not in my presence, no.
PN210
Not in your presence and so you haven't had any discussions with Mr Flood in relation to any discussions that I have had with him in relation to this agreement? He was your contact point as I understand it?---At AMMA at the time, yes.
PN211
Yes. And so he hasn't informed you of any discussions he and I had?---He - he told me that he had had discussions with you but did - didn't elaborate on - - -
PN212
So he didn't tell you that problems were that we already had an annual salary calculation sheet produced by Minesite which showed a greater salary than was being offered in the agreement?---Could you explain that again, sorry?
PN213
Well, the discussion I had with Mr Flood, and I put it to you it was in these terms, that what we explained to Mr Flood, there were two problems. First of all that employees had received the information pack which was attached to exhibit A3, right, which was the letter dated 2 April?---Yep.
PN214
Sent that out with the certified agreement?---Yep.
PN215
Right, now employees weren't getting that until the 5th and the original letter required them to have the vote back in Perth by the 19th, that's right? Second dot point?---Sorry, the second - - -
**** ANTHONY THOMAS WALSH XXN MR LLEWELLYN
PN216
Second dot point at the bottom of the front page?---Yes.
PN217
MR LLEWELLYN:
PN218
We propose the approval date by employees be 19 April 2002 -
PN219
?---That is correct, yes.
PN220
Right. And employees weren't getting the 14 days to be able to get the ballot papers in, were they? In other words, they weren't receiving the agreement and having the 14 days available?---Yes, they were .....
PN221
Well, Mr Walsh, can you explain to me then how employees were receiving the agreements on 5 April and they had to have the ballot paper filled out and posted back to Perth and in Perth by the 19th, but that complies with having the agreement for 14 days prior to casting a ballot. It is impossible. The 5th to the 19th is 14 days?---Yeah. We said we proposed that the approval date by employees will be 19 April 2002.
PN222
That is right?---That was for the first receivals of the - of the letter. Other people did not receive the letters and so - - -
PN223
Well, you actually changed that ballot process after you sent that letter out, didn't you?---What we did, we extended the dates for the votes to be returned.
PN224
And you sent a memo out to all managers to the effect that as a result of the voting being done before the 14-day period, you would have to redo it all. And the ballots that had already been sent in weren't going to be considered valid. That is correct, isn't it?---I don't recall that, no.
**** ANTHONY THOMAS WALSH XXN MR LLEWELLYN
PN225
Don't you? Can I have the witness shown this document? Does that document assist to jog your memory?---Yes, that is the same time there.
PN226
Right. And that was because employees that were receiving this first pack weren't getting the 14 days?---No, that wasn't the fact. The fact was that people were jumping the gun a little bit, that is all.
PN227
THE DEPUTY PRESIDENT: Can I just interrupt, Mr Llewellyn? We appear to be having some problem with the transcript. We will adjourn, we will go off record for a few moments. Thank you.
SHORT ADJOURNMENT
RESUMED
PN228
THE DEPUTY PRESIDENT: Okay. Can we go back on record?
PN229
MR LLEWELLYN: Well, Mr Walsh, if I put it to you, if I received a document from you on the 5th and I'm required to have posted a ballot form to arrive at AMMA's office by the 19th, I have to do that before 14 days are up, don't I?
TECHNICAL FAULT - OFF THE RECORD [11.30am]
RESUMED [11.34am]
**** ANTHONY THOMAS WALSH XXN MR LLEWELLYN
PN230
THE DEPUTY PRESIDENT: Well, I think you've got the trifecta now, Mr Llewellyn. Last time you were up here, we had an evacuation of the building. Earlier this morning we had the drilling upstairs cause us to stop, now you've had the transcript, so what next have you got? Do you want to give up on this one?
PN231
MR LLEWELLYN: My mother assured me it comes in threes.
PN232
THE DEPUTY PRESIDENT: Well, we've had the third.
PN233
MR LLEWELLYN: Which makes me nervous, because I've been in two plane incidents and I'm waiting for the third still.
PN234
THE DEPUTY PRESIDENT: Thank you. If you could continue.
PN235
MR LLEWELLYN: Thank you, sir.
PN236
Mr Walsh, the purpose of this letter was twofold. The first of the employees couldn't possibly have posted a ballot back to AMMA and still complied with not voting prior to the 14-day period?---Yeah, that's correct.
PN237
Right. I put it to you, that was after I had discussions with both yourself and Mr Flood from AMMA?---I can't be exact on the date but I - it had no bearing on the conversation I had with you, which as I remember was very brief.
PN238
Well, what made you put this document out?---That is because a couple of people voted before the date and brought voting papers - - -
PN239
So Mr Flood had contacted you about it?---No, no. Voting papers had gone to our manager's office.
**** ANTHONY THOMAS WALSH XXN MR LLEWELLYN
PN240
Wasn't the instruction to send the voting papers to AMMA's office via the Post Paid return envelope?---That is correct, yes.
PN241
And you're saying they went to your manager's office rather than AMMA's office?---Yeah. A couple of them were handed in and they were forwarded down to Mr Flood.
PN242
All right. So that is what generated this?---Correct.
PN243
All right. So as far as you know, that didn't come out of the conversation I had with Mr Flood about not being able to comply with the 14 days?---I don't recall that, no.
PN244
PN245
MR LLEWELLYN: Now, the second part I asked you earlier, Mr Walsh, was that employees had been asking you how to calculate the annual salary, hadn't they, under the agreement?---How to calculate the annual salary?
PN246
Yes. Employees wanted to know how you arrived at what their annual salary would be?---The salary that they were currently getting paid.
PN247
Well, not all employees were currently being paid salary, were they?---No. Some of them were actually on award.
PN248
Some were on the base award?---Yes, that is correct.
**** ANTHONY THOMAS WALSH XXN MR LLEWELLYN
PN249
And they wanted to know how the annual salary was going to be calculated?---No, they asked what their annual salary would be.
PN250
Right. And what response did you give them to that?---Well, we told them that they wouldn't be disadvantaged from the rate they were already on.
PN251
Well, their rate is an hourly rate based on the award. What was their annual salary going to be? They weren't on an annual salary yet, so how did they know what they were going to get as a bi-monthly payment?---No. We had about - I think we had about four individuals who were on the award.
PN252
My recollection is about six but anyway, I won't argue with you?---And when I spoke to the individuals, we worked out what their salary was currently and they were told that they would get the 4 per cent pay rise on top of that.
PN253
So that was their current salary on the base award?---Yes.
PN254
Would be what they would get?---Yep.
PN255
All right. Now, you've handed up exhibit A3 is a Maureen Darvill who works at Plutonic?---Yeah.
PN256
And the shifts you work at Plutonic are 11 hours a day, 14 days on, 1 week off - 2 weeks on, 1 week off?---Yes.
PN257
And that is worked by all the base award employees as well?---Yes.
PN258
And their salary would have been in excess of 46,000 a year, wouldn't it?---I don't recall at the moment.
**** ANTHONY THOMAS WALSH XXN MR LLEWELLYN
PN259
Well, didn't you show them how to calculate it?---Yeah. I talked it through with them.
PN260
All right. I will just have the witness shown this document, thanks. It is the one I sent through to you yesterday, Terry. You're familiar with that calculation sheet?---Yes.
PN261
And this is for 11-hour days, 2 weeks on, 1 week off?---Correct.
PN262
And is this the method - disregard the hourly rate on this one?---Yeah.
PN263
Is this the method by which employees, award covered employees were informed their annual salary would be calculated by?---I can't recall that at the moment, no.
PN264
All right. This is certainly the method by which, for example, Ms Darvill's salary was calculated, wasn't it?---I would presume it was initially, yes.
PN265
All right. And see, the concern I have is that a number of employees have said to me that they asked you how they would calculate the annual salary and your response was twofold. To some employees that was too hard and we will show you later. To other employees, it was as it had always been done and you have been provided with those sheets previously, which is this sheet I've given you now?---I don't recall the first one you just mentioned, of me saying it was too hard.
PN266
All right. You recall the second one then, that it was: As we had always calculated annual salaries?---I don't know whether it came out like that but yeah.
**** ANTHONY THOMAS WALSH XXN MR LLEWELLYN
PN267
PN268
MR LLEWELLYN: And in relation to the letters you handed out to employees who were not on AWAs or had not previously believed they were on AWAs, award employees got a different letter, didn't they? Is that right? Do you recall that?---Could you show me a copy of the document, please?
PN269
Yes, by all means. That is a copy of the letters that were sent to award employees with their agreements?---That is correct, yes.
PN270
And that showed the hourly rate currently under the award at that point at $12.62 an hour?---Yes.
PN271
And that was the hourly rate used to calculate their annual salary?---Yes.
PN272
All right. And that is based on 11 hours a day, 2 weeks on, 1 week off?---That is correct.
PN273
Right. And your information to these employees is that what they're currently getting now, based on that rate of pay, will not be less than what they get under the agreement?---Correct. They would get that plus the 4 per cent.
PN274
All right. Mr Walsh, have you got a copy of the agreement there with you?---Yes. No, I haven't, sorry.
PN275
THE DEPUTY PRESIDENT: Is that the one that has been lodged, is it, Mr Llewellyn?
**** ANTHONY THOMAS WALSH XXN MR LLEWELLYN
PN276
MR LLEWELLYN: Yes, sir.
PN277
THE DEPUTY PRESIDENT: I have a copy.
PN278
MR LLEWELLYN: Well, I believe it is the one that has been lodged.
PN279
THE DEPUTY PRESIDENT: I have a copy here that I can show the witness.
PN280
MR LLEWELLYN: I assume the one the employees have given me is the one that has been lodged.
PN281
PN282
MR LLEWELLYN: Now, Mr Walsh, if I could just ask you to go to appendix 1, which contains the minimum annualised rate of pay?---Yes.
PN283
And this heads up: For onshore employees. And for the purpose of this, we're talking about service attendants, of which both the letter I've handed you up for the hourly rate of pay and the letter for Ms Darvill, which is the annualised rate of pay both hold that position. And in terms of the 12.62 rate, that calculates out at a rate higher than 46,000, does it not, a year?---I couldn't say offhand.
PN284
THE DEPUTY PRESIDENT: Mr Llewellyn, I think we agreed earlier that you were going to confine this to the process?
**** ANTHONY THOMAS WALSH XXN MR LLEWELLYN
PN285
MR LLEWELLYN: I am, sir. The next question will reveal the purpose of the last.
PN286
THE DEPUTY PRESIDENT: Thank you.
PN287
MR LLEWELLYN: Sorry. Now, can I just direct your attention to the second and, well, second and third. So the paragraphs commencing:
PN288
The above rates are all-inclusive, taking into account all responsibilities, disabilities, other factors associated with the work, includes payment for hours necessary to undertake assigned duties including the requirement to work a reasonable amount of unrostered overtime.
PN289
Unrostered hours, sorry. Can you tell me how you explained that to employees?---That is pretty straightforward. It just says that is what you are going to get paid for doing that particular job, but you can be asked to work unrostered hours.
PN290
And what would they get paid for working unrostered hours?---They would get paid an overtime rate.
PN291
And where is that in the agreement?---Well, it would be based on the hours worked divided by the annualised rate. Or in the case of a - - -
PN292
Can you show me where it is in the agreement, though?---It isn't there.
PN293
It is nowhere in the agreement, is it? Right. What about - how did you explain:
**** ANTHONY THOMAS WALSH XXN MR LLEWELLYN
PN294
At the discretion of the company, the employee's rate of pay may be reviewed during the term of the agreement
PN295
?---Yes. That is because we can talk to people on a regular basis with regards to - - -
PN296
So what, you can put them up or down?---No. We can put them up.
PN297
So there is no way you can reduce their salary?---No.
PN298
And that 46,000, as I understand it that you've got in the agreement, you're saying is the minimum rate?---Yes.
PN299
And that equates to 11 hours a day, 2 weeks on, 2 weeks off - 1 week off, rather?---Yes.
PN300
All right. And you agree with me that the employee - that exhibit R3 that I've given you, which is the 12.62 rate, which is the base award, you agree that calculates out at more than 46,000?---That is correct. I - I can't work it out - - -
PN301
Well, can you tell me, did you show the employees anything to say how this employee knew what her annual salary was going to be?---Yes, I explained - well, it depends who you're talking about. I - - -
PN302
Well, employees based on the award, where you didn't give them a letter saying that your annual rate - your current rate of pay is 46,531, you're going to get 4 per cent on that, despite the fact that that is not in the agreement either, how did the employees know - you said there was four, I understood there were six, but whatever. The employees that received the second letter that said: Your hourly rate is 12.62, how did they know what their annual rate was from looking at this agreement?---Well, they actually told me what their annual rate was.
**** ANTHONY THOMAS WALSH XXN MR LLEWELLYN
PN303
Well, they told you what they earned the year before, because they knew that?---No, they - most of them could - no, the ones I spoke to could calculate their own rate of pay based on the 12.62.
PN304
And you told them their base award rate is not going to change, you will get that plus 4 per cent?---Plus 4 per cent, yes.
PN305
Right. The issue of what their rate of pay was, was quite a concern, wasn't it, for a number of employees?---Well, yes.
PN306
And whether as a result of the agreement, their rates were going to be lowered?---If you're referred to the minimum rates compared to their actual rate, yeah, there was some concern from people to think that they were going to be dropped down to the minimum rate and that was part of the - the actual visit to site, to tell them that that wasn't the case.
PN307
I mean, that was such an issue that Minesite saw fit to send out a memo to employees that the pay rise in the new agreement would be on the individual's current wage, not the agreement wage?---Yes. Because there was a misunderstanding between the two.
PN308
And that was done prior to the voting being completed as well, wasn't it?---Yes.
PN309
Right. Can you show me in the agreement where an employee's current wage will not be altered downward or picks up the increases?---Well, there is nothing in there to state that people's pay is going to go down.
PN310
There is nothing in there to state that it won't either, is there? All it says is that the rate of pay for doing 2 weeks work, 11 hours a day, for 2 weeks on and 1 week off, the rate is 46,000. That is what it says?---Yes.
**** ANTHONY THOMAS WALSH XXN MR LLEWELLYN
PN311
So the only thing - none of your employees have anything in this agreement that says their rate won't drop to 46,000?---Our employees have a letter to say that their current rate of pay is X and they will be paid 4 per cent on top of that.
PN312
And if they move from Plutonic to say, Gidgie, their rate could drop to 46,000?---I don't know where you got that from, no.
PN313
Well, doesn't it say in the agreement that depending on which site you're on, your rate may be different? I mean, all your sites operate autonomously, don't they?---In what respect?
PN314
Well, you get a contract, you put a manager in there and you put work force in there and predominantly they work on that site. The only people that move around are your relief staff?---Unless people want a transfer from site to site.
PN315
Unless they want a transfer from one location to another location?---That is correct, yeah.
PN316
And when a location finishes up or you lose the contract for a location, those employees generally are terminated unless there is somewhere you can move them to to a new contract?---No, they're never terminated. They're always transferred to another site.
PN317
What if you haven't got one?---It has never been the case in the 12 years I've worked there.
PN318
So far. Utopia doesn't always continue forever is the point I was trying to make, but anyway, in terms of what the agreement says; the agreement says that if I move from one location to another, my pay will vary in accordance with the location, environment - well, actually you reserve the right to vary the compensation related to location and environmental factors whenever you believe appropriate?---What point is that, sorry?
**** ANTHONY THOMAS WALSH XXN MR LLEWELLYN
PN319
That is contained in appendix 1 directly under the discretion you have to review the pay rate during the term of their employment?---Yeah, that is correct.
PN320
And isn't it correct that, depending on which site they work, their rate may vary?---No. It is not correct. The only way it would vary is if they were transferred to an offshore contract, which is totally different.
PN321
So all your onshore contracts are two and one?---No. We've got a couple of four and one sites.
PN322
And they're covered by this agreement?---Yeah.
PN323
So what is their annual salary according to the agreement? What hours do they work?---Well, as I say, each individual is paid on - each individual got a letter with the agreement to state what their current salary was.
PN324
But the agreement purports to cover 14 days on and 7 days off?---Yep.
PN325
It also says you can have other rosters and it also says you can change people's pays whenever you like. And what you've just told me is you have other sites that don't work two on, one off. Their annual salaries aren't in here. How do I know what they should be getting paid?---I suppose because we've only got two four on, one off sites and this was predominantly two and one.
PN326
Well, do I understand your evidence then: people were given the agreement. They were told: this is the new agreement. Your rate of pay won't change. We will give you 4 per cent on what we're currently giving you if this agreement gets up?---In essence, yes.
**** ANTHONY THOMAS WALSH XXN MR LLEWELLYN
PN327
All right. And as I understand it, sites you operate are, if I can go through them - Coobina, which is a chromium site, chromium mine?---Yep.
PN328
You have Plutonic, which is a gold mine?---Yes.
PN329
Hill 50 which is a goldmine?---Yes.
PN330
Windimurra, and for the purposes of this since I can't find where Mount what ever it was next to Windimurra, I presume are both vanadium mine, Windimurra and Mt Olympus mines; Windimurra and Mount Olympus? Are they both vanadium?---No, one is a gold mine one is a vanadium mine.
PN331
So Mt Olympus is a gold?---Is a gold mine, yeah.
PN332
Can you tell me where Mt Olympus is?---It is in the vicinity of Paraburdoo.
PN333
It is still not on their map. Sorry, and Monnos?---Mt Magnet.
PN334
And that is a gold?---It is a casual accommodation village.
PN335
Oh, so it is not a mine at all?---No.
PN336
All right.
PN337
Sandstone?---It is a road construction site.
PN338
Road construction site?---Yes. Temporary.
**** ANTHONY THOMAS WALSH XXN MR LLEWELLYN
PN339
All right and the other one is Hill 50 which is gold?---Yes.
PN340
Yes, okay. All right and they are located effectively through the Murchison and into the Pilbara. Is that correct?---Yes.
PN341
And this agreement covers all - - -
PN342
THE DEPUTY PRESIDENT: Just a minute, if you could just bear with me for a moment. Mr Walsh, can you lean forward a bit and ensure that you speak up a bit because we are having some difficulty hearing you for the transcript. Thank you.
PN343
MR LLEWELLYN: Sorry, sir, for the purpose of that it might help to put in a resource map which unfortunately I seem to have fallen one copy short. I do not know why I have done that but I have. Now I can either provide you of a larger one or a smaller one, which ever you prefer. I blew it up so I could try and find the places, if I can have the witness identify it and perhaps mark the places that are not marked on the resource map.
PN344
Right, Mr Walsh, I have actually marked 4 of the sites there, the other one you say is near Paraburdoo. Is that up near Channar somewhere?---Yep.
PN345
Mount Olympus?---Yes.
PN346
So it is around Paraburdoo somewhere?---Yes.
PN347
Sandstone is not from Windimurra in actual fact is it, Wiluna area?---Yes. No, it is between Windimurra and Lawlers or Agnew, as per your map.
**** ANTHONY THOMAS WALSH XXN MR LLEWELLYN
PN348
All right, so it is in there. And the other one I think, was Monnos?---It is in Mt Magnet.
PN349
Can you tell me where that is?---That is in Mt Magnet.
PN350
That is actually in Mt Magnet itself, all right and unfortunately this map doesn't have where Mt Magnet is but it is just below Weld Ridge, I think, roughly?---No, Hill 50 is in Mt Magnet.
PN351
PN352
THE DEPUTY PRESIDENT: I never knew there was a Maroochydore in Western Australia.
PN353
MR LLEWELLYN: You find all sorts.
PN354
THE DEPUTY PRESIDENT: A bit different to the other one, I suspect, it is below Telfer.
PN355
THE WITNESS: Slightly.
PN356
MR LLEWELLYN: Probably only marginally. Sir, I think that concludes all I have of Mr Walsh.
**** ANTHONY THOMAS WALSH XXN MR LLEWELLYN
PN357
THE DEPUTY PRESIDENT: Thank you. Mr Adams, any re-examination?
PN358
PN359
MR ADAMS: Mr Walsh, in relation to the ballot papers that were returned prior to the expiration of the 14-day voting period, did you arrange for new ballots to be cast in relation to those people?---I gave the opportunity to people who could prove they handed the ballot paper to the manager.
PN360
Within that 14-day window?---Yes.
PN361
You gave them an opportunity to cast another vote?---Yes.
PN362
Just with respect, there were some questions around the timing of the commence of the ballot or the commencement of the 14-day process. The letters that you sent to employees to which was attached a copy of the proposed agreement was dated 2 April?---Yes, I think so.
PN363
And the thinking at the time was that those letters would be received by the individuals to whom they were addressed on or about 5 April?---Yeah, we gave a - you know, obviously because of the logistics of getting them out there.
PN364
And your intention was that the ballot process would commence on 19 April?---Well, no. What we were trying to establish was the 14-day - a - at least a 14-day period.
PN365
Was it your intention, without wanting to put words in your mouth, was it your intention that the ballot collectively be conducted on the 19th or was it to commence on the 19th?---To commence of the 19th for people who had 14 - who had had the agreement for 14 days.
**** ANTHONY THOMAS WALSH RXN MR ADAMS
PN366
So there was a rolling ballot process commencing on the 19th?---Well it had to be because of the - the roster situation.
PN367
And for how long was the ballot open?---Oh, it was open for about 4 weeks, I think.
PN368
Right. Did you satisfy yourself having been alerted to the fact that some ballots had been cast early, did you satisfy yourself that subsequent votes that were cast during this process were received well after the 14 days?---Yes, definitely.
PN369
In relation to the exhibit, I think R3, which is the work sheet that you have had handed to you?---Yes.
PN370
There was some discussion about - - -
PN371
MR LLEWELLYN: R2.
PN372
MR ADAMS: R2, I am sorry, about the hourly rate and whether in fact the amount that appears at the bottom of the page reconciles with the rates that have been prescribed in the agreement for Service Attendants. Is that your work sheet, Mr Walsh?---Well there is nothing on this to - to explain what it is, you know, I - - -
PN373
Well, did you produce it?---It - it is similar to - to one we use.
PN374
Can you identify it as one which Minesite Catering produces for the benefit of its employees in the context of this process that we are talking about now?---No. This is a pretty old document, this.
**** ANTHONY THOMAS WALSH RXN MR ADAMS
PN375
Did you use this document in the context of any discussions or site visits that you had with employees?---No.
PN376
To your knowledge?---No.
PN377
You did not?---No.
PN378
Did you make available to employees at any stage during those discussions any information that would assist them to understand how the hourly rate and the - sorry, the annualised salary comes together?---Yes. That was mainly done on a one on one basis but it was only with two, three individuals.
PN379
All right, now there were, as I understand it and please correct me if I am mistaken, there are two categories of employee. There are a very small number of employees who are engaged under the award?---Yes.
PN380
And there is a large number of people who are engaged and paid on other arrangements?---Yes.
PN381
In relation to your own satisfaction as the Operations Manager as to the extent to which the people on the award would not be disadvantaged when moving onto the agreement, how did you explain to them or reconcile, or give them comfort I suppose, that what ever it was you were proposing to do with respect to their rates, was going to deliver them an advantage, or certainly not disadvantage them in the context of the move to this agreement?---Just to explain that, along with everybody else they were being given a - a 4 per cent pay rise.
PN382
So, your thinking is that at the time you had the discussions with these people who are being paid under the award, they were already on the correct award rate?---It was my understanding that that was correct, yes.
**** ANTHONY THOMAS WALSH RXN MR ADAMS
PN383
And you were going to advance their wages or hourly rates by 4 per cent?---Correct.
PN384
And they would subsequently be covered by this agreement?---Yes.
PN385
Now, I am not sure, do you have a copy of the agreement in front of you there; I do not think you do?---Yes.
PN386
You do? If I can just ask you to direct your attention to appendix one, can I just ask you to clarify for the record, you will see underneath the two tables there is an italicised paragraph and immediately underneath that there is another paragraph which was the subject of some attention by Mr Llewellyn and in particular, I draw your attention to the last line which makes reference to employees being required to work reasonable amount of unrostered hours. What is the company's intention with respect to payment or otherwise for those hours that are worked which are unrostered?---All employees will be paid an - an hourly rate for unrostered hours.
PN387
Is there any situation that might present in which you would ask employees to work unrostered hours unpaid?---Certainly not.
PN388
Further on down in that appendix, Mr Walsh, there is a paragraph which begins, "At the discretion of the company..." can you just tell us what your intention is as the employer with the respect to the review of rates of pay of employees covered by the agreement during the term of the agreement?---Well, it states here that if the agreement were certified people would get a 4 per cent pay rise followed by 3 per cent and 3 per cent. But we have - we do and we have in the past reviewed individuals annualised wage with a view to rewarding them and - and quite a few people are paid over award for that reason.
PN389
Is it the company's intention to reduce wages actually paid at this point in time or at any point in the future to align them with the rates that are prescribed in the proposed agreement?---No.
**** ANTHONY THOMAS WALSH RXN MR ADAMS
PN390
Is it the company's intention to at any stage adjust the rates that are currently being paid to employees as a consequence of a re-assignment from one site to another?---No. Certainly not.
PN391
It can be seen from the last paragraph on Appendix 1, Mr Walsh, that it is certainly the company's intention to increase rates of pay and you have indicated earlier that 4 per cent will be added to actual salaries being paid at the moment on certification of the agreement. What is the intention with respect to the timing of the two subsequent 3 per cent adjustments?---Annually from 1 May.
PN392
So on the first anniversary of the certification of the agreement there will be a further 3 per cent adjustment. Is that correct?---Yes.
PN393
Now just while you have got a copy of the agreement in front of you there, can I just ask you to draw your attention - draw your attention to page unnumbered, Clause 11, Rosters and Hours?---I haven't got a copy of that.
PN394
It is on the second - third page in?---I thought you said page 11, sorry. Yes.
PN395
Can you see the clause there entitled, Roster and Hours?---Yes.
PN396
All right. Could I just ask you to read the first sentence for me from that second paragraph?---
PN397
The annualised wage and pay rates prescribed in - - -
PN398
Sorry, the second paragraph?---Oh, sorry -
**** ANTHONY THOMAS WALSH RXN MR ADAMS
PN399
Where significant changes through hours or roster cycles are to be made, the company shall consult with the employee on the impact of such a change. Should the roster be changed from the above outline cycle, annual salaries will be adjusted accordingly. The company will ensure - - -
PN400
Could I just stop you there Mr Walsh. What is meant by "annual salaries will be adjusted accordingly"?---If a person's roster changes, then it would - well you would be paid according to the roster that you were going on to.
PN401
Right. Well perhaps can I just ask you to elaborate. Would the company unilaterally make changes to annual salaries without consultation and agreement from the employee concerned?---No and never has been the case.
PN402
All right. And, if I could just ask you to continue on in that same paragraph, beginning with the sentence, "The company will ensure.."?---
PN403
The company will ensure that no employee will be paid less than the salary they would have received had they been paid for their time worked under the relevant Federal Award.
PN404
Would the company make an adjustment to salaries if it was shown, demonstrated that the rates that were being paid to people under this agreement were, in some cases or some areas, less than the Award? Would the company make up the difference?---Could you just say that again, sorry?
PN405
If it were brought to the company's attention that there may be areas during the life of this agreement where the actual rates that are being paid were less than what would otherwise be required to be paid under the Award, would the company make that difference up?---Yes.
**** ANTHONY THOMAS WALSH RXN MR ADAMS
PN406
Thank you, your Honour. I have nothing further.
PN407
THE DEPUTY PRESIDENT: On that last question before you leave Mr Walsh, how would the company become aware if there was a greater entitlement under the Award compared to what was being paid?---We would be informed by our industrial relations adviser as to any changes in any Awards.
PN408
So you would monitor the hours that people are working and compare that to what they would be entitled to under the Award or how would you do it? Would you wait for someone to come and tell you what?---No, no. We would be - as I said, we would be alerted to the fact by our industrial relations adviser.
PN409
But for an individual worker, how would they know?---Well, I mean, any word that we have got to pass on, we pass on and we consult our employees about it.
PN410
Okay. Thank you Mr Walsh.
PN411
MR LLEWELLYN: Perhaps if I can just - one question that arose out of what you have just asked - - -
PN412
THE DEPUTY PRESIDENT: No, Mr Llewellyn, I was informing my own mind. If you want to address anything in the submissions, you can do so.
PN413
MR LLEWELLYN: Well, it may be that I want to give evidence given the question that my friend has just answered then.
PN414
THE DEPUTY PRESIDENT: Well that is up to you.
**** ANTHONY THOMAS WALSH RXN MR ADAMS
PN415
MR LLEWELLYN: Thank you.
PN416
PN417
THE DEPUTY PRESIDENT: Just a moment Mr Adams, Mr Walsh, all those documents that have been tendered are tendered and retained for the record.
PN418
MR WALSH: It is some of my own documents there, that is why - - -
PN419
THE DEPUTY PRESIDENT: The only - if you had any documents you had with you that were not tendered you may retain those. Thank you. Mr Adams, as I said at the outset, I wanted to deal with this sequentially, one on the process, two on no disadvantage for non-salaried related issues and then no disadvantage on salary related issues. So is that compatible with how you can pursue this?
PN420
MR ADAMS: Well, the Commission was provided yesterday with a copy of some working papers from the company that I work for with respect to the detail of the no disadvantage test - - -
PN421
THE DEPUTY PRESIDENT: With respect to salaries.
PN422
MR ADAMS: That is right.
PN423
THE DEPUTY PRESIDENT: Yes.
PN424
MR ADAMS: And, subsequently, not being at work yesterday, I received a copy this morning of a fax from Mr Llewellyn from the union which sets out what he says are his calculations on the no disadvantage test and I have to say, at the outset, that there are some substantial differences between us as to the manner in which these calculations ought to be done. What I propose to do was to dissect some of the workings in the document that has been provided to us by the AWU because, with respect, I think, a number of assumptions have been made in relation to the way the company organises its work and also on the interpretation generally that has been put on the Award in relation to those aspects of the agreement which we don't agree with.
PN425
I don't know whether - - -
PN426
THE DEPUTY PRESIDENT: Well they are issues and that was why I was - they are issues I see more to do with the no disadvantage with respect to salary estimation and comparison but there are other elements of the agreement that I certainly have some questions on. Now I don't know whether you intend to address the other elements of the agreement to establish how it satisfies the no disadvantage test or whether you are going to concentrate on the salary issues. If you are only going to concentrate on the salary issues, I will identify those issues I have some questions about, if that is - that is what I am getting at.
PN427
MR ADAMS: Yes - no, look, I apprehended that is how the matter would proceed. I do have some submissions that I would like to make on the question of the extent to which there are differences between the AWU and myself in relation to the annualised salaries. In relation to the Award matters, there are hourly rates prescribed - in fact I have a document - - -
PN428
THE DEPUTY PRESIDENT: Well, I am not talking about rates at all in some of the issues I want to raise, that is what I am getting at.
PN429
MR ADAMS: All right, your Honour. Well perhaps if I deal with the question of annualised salaries and I will develop separately a submission in relation to the Award covered people and how the company and, also, I suppose in the context of the agreement, satisfies itself that those people who are engaged and paid under the terms of the Award, will not be disadvantaged as a consequence of a move to this agreement.
PN430
THE DEPUTY PRESIDENT: Okay. Well I am in your hands.
PN431
MR ADAMS: Could I begin - I assume that you are in receipt of a copy of a fax from the AWU?
PN432
THE DEPUTY PRESIDENT: Yes.
PN433
MR ADAMS: That was sent yesterday. It is a very busy document and I have had an opportunity to spend a little bit of time on it this morning, I hasten to add not as much as I would otherwise have liked. But, in any event, there are a number of assumptions that are built in to the modelling for the calculation of the no disadvantage test with which we do not agree. The first one that I would like to draw to your attention is that the calculations are done, it seems, over a two-year period and there is an assumption that during the second year of employment with the company that a period of annual leave will be cleared that has been accrued in the first year of employment.
PN434
Now for the purposes of doing these sorts of calculations, what we have done in the context of setting up the agreement for the company is to assume - and you will see from the document that I have provided to the Commission yesterday, that the annual leave component for each year is built in to the salary. So, instead of making a deduction for the annual leave, we have erred on the side of caution by including the full value of working a two on one rotation over a full year plus the value of the annual leave, which is set out on the second - third page, I am sorry, of the document that was sent to the Commission yesterday.
PN435
You will see there - - -
PN436
THE DEPUTY PRESIDENT: I might actually ask you to tender that and I will mark it as an exhibit. I am assuming Mr Llewellyn has a copy of it. If not you will need to provide him one.
PN437
MR LLEWELLYN: Yes one came through by fax at around 3 o'clock yesterday afternoon.
PN438
THE DEPUTY PRESIDENT: Yes. So I will take it the one that I have received yesterday is the tendered version, Mr Adams, which is a fax from - to me dated 3 July and I will mark that - where did I get to, A - I will mark it A6 and just for the sake of completeness, Mr Llewellyn, the fax and e-mail you sent me yesterday I will mark R - where did we get to with the Rs, R5, assuming you - I think we will just do that so that they are both on the record.
EXHIBIT #A6 FAX TO THE DEPUTY PRESIDENT DATED 3/07/2002
EXHIBIT #R5 FAX AND E-MAIL TO THE DEPUTY PRESIDENT FROM MR LLEWELLYN
PN439
THE DEPUTY PRESIDENT: Sorry Mr Adams.
PN440
MR ADAMS: So the submission in so far as it relates to the question of the adequacy or otherwise of the rates in the agreement for annualised salaries, you can see that the head chef, the qualified cook and the service attendants are all, at least in so far as the annual leave component is concerned, your Honour, calculated to include a margin which effectively covers the full year of work on a two on one rotation, including the full value of four weeks annual leave plus leave loading. The second issue that is a - dare I say it, dramatic difference between the two documents that have been tendered, is that the hourly rate - the deviser for the hourly rate calculations on the document presented to the Commission by the union, is a 38 hour week deviser.
PN441
We have used a 40 hour week deviser which the Award entitles employers to do and you will see around about the middle of the table on the third paragraph of exhibit A6 - or A5, there is reference made there to the bi-add of leisure days. Now the Award allows a deviser of 38 hours per week to be used or, pursuant to clause 30 subclause (6) paragraph (i) for a 40 hour devisor to be used and for a 40 hour week to be worked, subject to there being allocation made over the course of the year to an employee accruing 12 leisure days. Now what we have done in our no disadvantage test summation is to buy out those leisure days so we have used the 40 hour deviser, included the full value of the bi-add of the leisure days.
PN442
The AWUs document uses a 38 hour deviser and I suppose therein lies the substantial difference between the two of us with respect to the hourly rate because on our document we calculate equivalent ordinary hours and apply a rate divided by 40 so at least in so far as the hourly rate is concerned in our respectful submission the rate suggested by the AWU is over-stated. The third issue of significance between the two of us, I suppose, concerns the service allowance which you will see from the document exhibited by the AWU is included in the calculations on all the pages. However, it is not on ours.
PN443
Now the reason for that is that in the Award when it was made in 2000, the service allowances are absorbed or are absorbable by safety net adjustments. Now as the Commission would be aware, there have been, since the Award was made, two safety net adjustments of $15 and $18 which more than adequately cover the highest rate of service allowance which is payable under the Award of $21 and by extension of that logic I should also mention at this juncture that the hourly rate of pay differs from the union exhibit to the extent that there is a difference in the hours that are being worked.
PN444
The only - or another element of that difference perhaps I should say is that - and Mr Llewellyn noted for the record earlier, the weekly rates of pay which are applied in our document are based on the actual rates which prevail in the Award at this time. The rates of pay that have been used to calculate the no disadvantage test comparison in the AWU document are using rates which are not due to take effect until 22 November this year. So the weekly rate for each of those three classifications in the union document is over-stated and it is over-stated to the order of $11 per week, at least in so far as the head chef is concerned.
PN445
There is another aspect to the union's contentions in relation to the no disadvantage test which we take issue with and that is, again, in connection with clause 30 subclause (6) which concerns the right of a company to work a 40-hour week. Now as the Commission would be aware from submissions that have been made earlier, the company is not being bound by the IWCIS Award, at least in so far as some of its workers have been concerned for some time. The Award contains a provision which says that if a company chooses because of the way it wants to operate the site or the way it chooses to structure its rosters and rotations, that it can elect to work a 40-hour week instead of a 38-hour week. That is what the company has done for some years in connection with the way it structures its business.
PN446
The overtime penalties that are payable when one structures a roster or rotations in that manner are payable for hours worked in excess of 40 not 38. Now in the AWU document reference is made throughout all of the attachments to a 38-hour week deviser and penalties being payable for hours worked in excess of 7.6 on any day. The calculations in our document have been done based on penalties - or overtime penalties at least being payable for work done in excess of 8 which the Award, I hasten to add, allows one to do provided that there is consideration given to the question of leisure days.
PN447
Now in our calculation we bought out the leisure days so the full value of the leisure days and the appropriate penalty payments are being paid using an 8-hour day or a 40-hour week deviser, not 38 or 7.6. So in the union's document where reference is made to hours that are worked in excess of 7.6 on any day, Monday to Friday, is in our respectful submission incorrect and, moreover, where penalty rates are being discussed for Saturdays and Sundays in our submission they are also incorrect because they substantially over-state the degree of penalty payments that are otherwise payable in a situation where either a 40-hour week deviser is being used or whereby consequence of the implementation of a revised roster system which arises from consultation between the company and the employees, a different style of roster is being worked.
PN448
The reason I think essentially that there are substantial differences between the two is that the union assumes that all hours worked on Saturday are at double time and all hours that are worked on Sundays are at double time. And therein, I think, lies a substantial part of the difference between us. We say that the way the calculations have been done in our document, which properly characterise the way the roster are run, the hours per week that are worked and the time at which penalties are otherwise payable, is a much closer approximation of what the Award would otherwise require the employer to pay were the employees working under the Award as opposed to the document that has been tendered by the AWU.
PN449
So if one - just to summarise, if I can, the essential differences that we see between the two and why it is that we say the union's document is wrong, is that penalty rates in the union's document have been calculated to take effect at a time differently from ours. The service allowances are absorbed in our document, they are over-stated, in our submission, in the AWUs document. The hourly rate devisers are different. The weekly wage is different because of the incorrect inclusion, if I can characterise it that way, of the second half of the 2002 safety net adjustment in the union's document, and the weekend penalties are vastly over-stated in the AWU document.
PN450
Now in our submission the proper way to carry out the no disadvantage test or to set it out is as we have done in our document. You will see that we have done all the equivalent ordinary hours estimations based on a two week rotation, working eight ordinary hours per day - this is on page 1 of the actual notice of no disadvantage test calculations. And the penalty hours that are calculated are done on the assumption that there is eight ordinary hours in a day and in the next two are a time and a half and then you have got one hour at double time.
PN451
That, we say, is the proper way to characterise the number of hours that are worked on a rotation - on a two and one rotation. We have also built into our model assumptions with respect to the average number of public holidays that are worked during a roster over the course of a year and we have included within the penalties double time and a half for those days that are worked. We estimate that there are something in the order six and two-thirds public holidays worked over a course of a year.
PN452
So the logic in the document that has been presented by the company with respect to the no disadvantage test is - will stand up to scrutiny, perhaps I could put it that way. We say that at least in so far as the inclusion of four weeks worth of annual leave in each of the three classifications is an over-estimation of the actual cost to an employee in terms of their earnings over the course of a year because it is true to say that the accrual of the value of the annual leave is certainly a cost to the employer but what we have done in the context of setting out - including it in the no disadvantage test is to say that the actual wages earned by an employee is not only the wage that they were paid for the hours that they worked, but it includes a component which for the head chef is in the order of $2500 in excess of what they would be paid. Not what they would have earned having regard for the accruals, the leave accruals during the course of the year but just what they would have been paid for the hours that are worked.
PN453
So we estimate that, for example, a head chef will earn, assuming that the annual leave is paid out and there is provision in the proposed agreement for that to happen, that the actual amount of money paid to a head chef over the course of the year is something like $50,500. It is nothing like $62,168, which the union contends is a more accurate reflection of what a Head Chef would earn working that rotation. So, there are some glaring differences of opinion as to who the award ought to be interpreted, with respect to the cycles that are being worked and the calculation of equivalent ordinary hours over a 2 week cycle.
PN454
THE DEPUTY PRESIDENT: Could you run me through that annual leave argument that you are running. I am not sure I fully grasp it.
PN455
MR ADAMS: In the document that we presented yesterday, we calculate that there are 17.38 cycles worked per year on a 2 and 1.
PN456
THE DEPUTY PRESIDENT: Yes.
PN457
MR ADAMS: Assuming that all of those cycles are worked and there is no time off taken off for annual leave, the actual amount of money paid to an employee over the course of a year would be $50,347 less the value of the 4 weeks leave.
PN458
THE DEPUTY PRESIDENT: I see what you are saying. What you are saying is, the 17.38 cycles covers 52.14 weeks and then following that 52.14 weeks, on top of that there is 4 weeks leave that would be paid, in effect, the following year. So, in effect what you are saying is, you are including 56 weeks pay in a 52 week cycle.
PN459
MR ADAMS: Effectively, that is correct, yes. If you like, it is a rather generous over statement of what the actual earnings position would be given that - and the reason we have included it is, there is provision within the agreement for the value of the leave accrual to be paid out at the end of each year so - - -
PN460
THE DEPUTY PRESIDENT: But why do you have, the fifth column, you have got the $43,934 calculated on 48 weeks?
PN461
MR ADAMS: The 48 weeks is 52 weeks less annual leave, that is correct. I may have misled the Commission there and I may be in error. I apologise. But yes, I may be in error, your Honour, I do apologise. I was contrasting the document that we submitted yesterday with Mr Llewellyn's and I have misled myself as well as the Commission and for that I apologise. The actual salary that would otherwise be earned over the course of a year, if one were to take annual leave, is in fact, $50,347 which is 48 weeks at work theoretically plus the annual leave component of 4 weeks.
PN462
THE DEPUTY PRESIDENT: Yes, okay.
PN463
MR ADAMS: Including leave loading.
PN464
THE DEPUTY PRESIDENT: Yes.
PN465
MR ADAMS: The other issue that I overlooked earlier and which I should mention is that the company, as was evidenced in the discussion between Mr Llewellyn and Mr Walsh, is to the effect that there are a number of sites at which the company operates and there are, as a consequence of that, various rates of district allowance which are payable according to the location of the site. What the company has done in the context of the no disadvantage test is to include an amount which is the highest that is otherwise payable at any of the sites at which they work.
PN466
It is not altogether clear from the union's document how much district allowance has been included or what assumptions are made in relation to the inclusion of that. In our no disadvantage test calculation, we have included an amount, I think, for Paraburdoo which under the award is $20 worth of district allowance. Now, if you make a deduction from that on the basis that there are no dependants sought to be covered under the district allowance and more over, accommodation and meals are provided, and if you deduct a third from the $20 and multiply it by the number of cycles, you come to an amount, which from our point of view, is $13.33 per week. And that figure is multiplied by the number of weeks at the site, not the number of weeks over the course of the year of course because for one out of every three weeks they are not at the site.
PN467
So, at least in so far as the annual salaries are concerned and based on what the employee would otherwise earn including the annual leave component over a 52-week year, we say that the salaries that are set out on the document that was tendered to the Commission yesterday are the actual salaries that would otherwise be payable for employees engaged under the award. Now, the Commission will note that in the proposed agreement there are annualised wages included which are in excess of the amounts set out on our no disadvantage test calculations.
PN468
The amounts that are included in the agreement are substantially beyond those which are set out on the no disadvantage test calculations. At more over, what has already been said in evidence this morning is essentially that the annualised wage rates that are prescribed in the agreement are minimum rates. The actual rates that are being paid are in excess of that. More over, they will be increased by 4 percent following the certification of this agreement.
PN469
THE DEPUTY PRESIDENT: Four percent; where is that?
PN470
MR ADAMS: It is not in the - I don't think it is in the agreement but it has been mentioned in evidence from Mr Walsh this morning and it is also mentioned in two of the exhibits that were entered through Mr Walsh this morning as well in terms of the communications that were sent to employees with respect to the company's intentions.
PN471
THE DEPUTY PRESIDENT: See, I have got appendix one in the agreement that has been lodged, has got at the bottom of it a three percent increase from the pay period commencing on or after, and there is no date, and a further three percent increase on or after, again no date. Is there something missing from my copy?
PN472
MR ADAMS: Well no there is not and clearly there is and that is why I was careful to ask Mr Walsh in his evidence this morning what the company's intentions were with respect to the payment of those adjustments. Clearly, the company's intention is that following certification of the agreement the actual rates of pay that are being paid to employees now, not the rates in the agreement, and I have an exhibit which I will tender in a moment which may make this a little bit clearer, but the actual rates that are being paid for all of the people engaged in these classifications will be increased by 4 percent once this agreement is certified. And in his evidence earlier, Mr Walsh has indicated that those actual rates will be adjusted by a further 3 percent on the anniversary of the certification of the agreement and by another 3 percent after that.
PN473
MR LLEWELLYN: With respect to my friend, the evidence was 1 May. My friend put it back to him that it was going to be the anniversary of the agreement; the evidence was 1 May.
PN474
MR ADAMS: Well, that just makes it that much easier then doesn't it because we were talking about 2 months retrospectivity on - - -
PN475
THE DEPUTY PRESIDENT: Well, the 4 percent, I mean, what I have in front of me is an agreement that you are seeking to be registered. If the employer then wants to go and have some other increase, that is not really before me. What is before me is what the content of the agreement is. Now, I gather what the content of the agreement is, is that there is a 3 percent increase from, when?
PN476
MR ADAMS: The 3 percent increase will be with effect on the anniversary of the certification of the agreement.
PN477
THE DEPUTY PRESIDENT: So, it is 3 percent on the anniversary? It makes it pretty hard to - why didn't they put that in?
PN478
MR ADAMS: Sorry?
PN479
THE DEPUTY PRESIDENT: Why wasn't that put in, I mean, 3 percent increase from the first pay period commencing on or after - it is supposed to be, what, 12 months after the anniversary of - - -
PN480
MR ADAMS: Yes, look, I think what has happened is that perhaps the paperwork hasn't been tidied up adequately before it was put out but the intention at least in so far as that aspect of it was, concern was made very clear to employees at the time the site visits were held and consultation was held with them and also in the documentation. But if you were just to contrast to no disadvantage test work that we have done and our estimation of what the actual earnings would be for employees paid under the award with the rates that are prescribed in the proposed agreement, the minimum rates that are prescribed, they are far in excess of what our estimation of the no disadvantage test would otherwise suggest ought to be paid.
PN481
To the extent that the agreement proposes annualised rates of pay for those three classifications, we say that they are substantially in excess of what the no disadvantage test calculations that we have done, say. Now, in the document that the AWU has provided, obviously they have a different point of view as to how the no disadvantage test ought to be done and their figures are substantially inflated on ours. And I suppose at the end of the day there will be a contest as to the voracity of the calculations that have been done and the assumptions that underpin them.
PN482
THE DEPUTY PRESIDENT: Well look, I do not have any difficulty assessing what is the proper base to use for a test and Mr Llewellyn representing the employees concern no doubt will outline what he, just as you have, says is the proper base under the award. What I have a difficulty with is establishing what that base is being compared to. That is, what is in the agreement. Now, you have said, well, the agreement is a minimum annualised salary; it is not necessarily what is going to be paid, so, minimum.
PN483
You have said there is a 4 per cent increase that doesn't form, and presumably won't form part of the agreement, that will be applied to actual rates of which I have no real knowledge. And I have not heard that it is intended to be applied to the minimum rates in the agreement. I have heard, and see, from the agreement there is a 3 per cent increase; have now heard that is from 12 months time and a further 3 per cent from, what, another 12 months after that, did you say?
PN484
MR ADAMS: That is correct, yes.
PN485
THE DEPUTY PRESIDENT: So if I establish what the award base is, that is what I am comparing it to. In the case of a Head Chef, for now, $52,500.
PN486
MR ADAMS: Yes, that is correct. What we are saying is that at the time of certification and for the purposes of completeness, the $52,500 includes a component, a 4 per cent adjustment on the - well, if you like, the way the situation in terms of the agreement was represented to employees, the rates that have been set out in the agreement are the minimum that will be paid; they are inclusive of the 4 per cent that we have just been talking about. However, the actual rates to be paid to employees on certification of the agreement will be increased by that 4 per cent and then there will be two subsequent 3 per cent adjustments both to the actual rates and the rates in the agreement on the anniversary, on each of the next two anniversaries of the agreement.
PN487
THE DEPUTY PRESIDENT: The 4 per cent, for the purposes of the comparison, the 4 per cent when the agreement is certified, does not form the part of my calculation, does it?
PN488
MR ADAMS: No, it doesn't, no. I appreciate that point.
PN489
THE DEPUTY PRESIDENT: But there has been a 4 per cent included in the rates post the ballot, has there?
PN490
MR ADAMS: No, the rates that have been included in the agreement have been calculated having regard for what the no disadvantage test told us at the time the agreement was constructed and we need to bear in mind that the agreement was actually sent to employees for their consideration prior to the 2002 safety net adjustment.
PN491
Now, what we have done in the document we provided to the Commission yesterday is to include, or to update the no disadvantage test, to take account of that portion of the 2002 safety net adjustment which was not available at the time the first agreement was sent round. The rates in the agreement that are before the Commission today, and which were before the employees during the 14-day period for their consideration, have not changed but - - -
PN492
THE DEPUTY PRESIDENT: Can you do that though? And in the agreement that is put to the employees, even if it is greater than what was in the - if you adjust it upwards by greater than what has been put to the employees, can you do that? I mean, they vote on an agreement.
PN493
MR ADAMS: They have been asked to vote on an agreement which contains a minimum rate of annualised wage of X dollars by classification. We have sought to demonstrate to them and seek to demonstrate to you today that the actual rates that they would otherwise be paid under the award, even having regard for the most recent safety net adjustment or that component of it, are still in excess of what they would otherwise earn under the award.
PN494
THE DEPUTY PRESIDENT: No. What I am saying to you is, you put a proposed agreement to employees, it contained, say for the sake of the argument, $50,000 minimum rate?
PN495
MR ADAMS: Yes.
PN496
THE DEPUTY PRESIDENT: Okay, that agreement was voted on and those employees, yet defined, but they voted in favour of accepting the agreement. You have then changed that $50,000 by increasing it.
PN497
MR ADAMS: No, we have not. We have not changed it at all. The agreement that is put before the - - -
PN498
THE DEPUTY PRESIDENT: Well what was put to the employees?
PN499
MR ADAMS: The rates prescribed which are set out in the classifications in appendix one to the agreement of which is before the Commission today, are the minimum rates of pay that would otherwise be payable to people engaged under those classifications. And they have not changed.
PN500
THE DEPUTY PRESIDENT: So, let us take Head Chef, Level One, that in the agreement that is before me is $52,500?
PN501
MR ADAMS: Yes.
PN502
THE DEPUTY PRESIDENT: Is that what was put to the employees for the ballot?
PN503
MR ADAMS: Yes.
PN504
THE DEPUTY PRESIDENT: Well where is the 4 per cent you were talking about come into it that they have been adjusted; there is two 4 per cents you were talking about. One that you are going to apply that is nothing to do with here and one that you have applied. What is that?
PN505
MR ADAMS: There are two elements to this. There are the minimum rates of pay that are prescribed in the proposed agreement.
PN506
THE DEPUTY PRESIDENT: Yes.
PN507
MR ADAMS: Which we say on the evidence and on the documentation we submitted, exceed the no disadvantage test. They are the minimum rates that the company will adhere to. And then there are the actual rates of pay that are being paid. Now, in the context of the agreement what we have said is, let us have a look at how much the award would otherwise require us to pay by classification, let us then put an amount into the agreement which exceeds the rates of pay that we have determined would otherwise be payable and then let us increase those annualised minimum rates by 3 per cent for each of the next 2 years.
PN508
So, we have built a safety margin between what the no disadvantage test tells us and what we say the minimum rate of pay is that you will be paid under the agreement. Notwithstanding the fact that employees are being paid in excess of that to begin with.
PN509
THE DEPUTY PRESIDENT: Yes. No, I can understand that. What I am getting at is, the agreement that I have in front of me, the agreement that you lodged, was the agreement that was circulated to employees and they voted on and there has been no change, or, has there been a change to what they voted on?
PN510
MR ADAMS: There has been no change to what - - -
PN511
THE DEPUTY PRESIDENT: At all?
PN512
MR ADAMS: At all.
PN513
THE DEPUTY PRESIDENT: Okay, well I must have misunderstood you. I understood you to be saying that you had upgraded the rates since the vote.
PN514
MR ADAMS: No, no. There has been no change to the agreement at all. I am sorry if I have misled you but the actual intention was that we would put before the employees an agreement, at least with respect to wage rates, which would show them that the minimum amount of money that you will be paid by classification is this much, your actual rate of pay however, and which was set out in one of the exhibits that Mr Walsh was talking to earlier, is already in excess of that and that actual rate of pay will be increased over the next 2 years as well.
PN515
So, to give them comfort that what they are being asked to vote on is not only the minimum rate of pay that they will get but that they are getting more than that already and in addition to it, they are going to get more increases. So, what we tried to demonstrate to them in the context of rolling this agreement out, for want of a better term, is that the amount that you are going to be paid here and which will be adjusted to keep pace with inflation and all those other sorts considerations of the next 2 years, is no less than what you are getting now. Everyone who was sent a copy of that letter, which was exhibited through Mr Walsh earlier, was told what their actual annual salary is now and if they reference that back to the agreement they would have seen that the rate that is in the agreement is less that what they are being paid.
PN516
So, to the extent in my submission that the agreement meets the no disadvantage test, it is clear that if the calculations that we provided are to be accepted, that at the time the agreement was voted on, and this was prior to the most recent National wage adjustment, the minimum rates that were prescribed in the agreement substantially met the no disadvantage test. In fact, in my submission, generously. Since then there has been a National wage adjustment, we have revised our no disadvantage test calculations and in our submission, the revised rates are still less than the rates that are prescribed in the agreement.
PN517
THE DEPUTY PRESIDENT: I see what you are saying, yes.
PN518
MR ADAMS: And reference to the extent that it is relevant to the subsequent adjustments is simply to give employees, and others, comfort that the rates of pay that they are actually being paid will continue to exceed the rates that are set out in the agreement. I might at this juncture, your Honour, just tender an exhibit.
EXHIBIT #A7 MINESITE CATERING STAFF LISTING ANNUALISED RATES OF PAY
PN519
MR ADAMS: I wonder if I might just ask you, your Honour, do you have two single A4 pieces of paper marked, Minesite Catering Staff listing annualised rates of pay or is there only one there? I just seem to be missing one, that is all.
PN520
THE DEPUTY PRESIDENT: I have got what you have just tendered; is Minesite Catering Staff listing annualised rates of pay. That is for Head Chefs and Chefs and then there is another page, the same title, Service Attendants, there are another 2 pages for that. If you can have a look at it?
PN521
MR ADAMS: If you wouldn't mind, I just seem to be one page short but the exhibit is - - -
PN522
THE DEPUTY PRESIDENT: Have you tendered the right one?
PN523
MR ADAMS: I'm sorry?
PN524
THE DEPUTY PRESIDENT: Are you asking whether you have tendered the right one?
PN525
MR ADAMS: No, no. Yes, I certainly have. It is just that there is one page missing, is a listing of the actual payroll of the staff by classification as at the end of this financial year which shows what the actual salaries are that are being paid to people engaged in those classifications over the course of a year. Now, the first page which is, Head Chef and Chefs, the actual rates that are being paid, the lowest paid Head Chef is currently earning $53,000 a year which is in excess of the agreement provision, as is the case with the Chefs. Demonstrably in excess of what the agreement provides and dare I say it, far and away in excess of what our no disadvantage test tells us we ought to be paying for people engaged in those classifications under the award.
PN526
THE DEPUTY PRESIDENT: And these are for hours and rosters that are as a basis of your calculations in A6?
PN527
MR ADAMS: Yes, they are.
PN528
THE DEPUTY PRESIDENT: And what you are saying I take it then, these are not only in compliance with the award entitlement equivalent but in excess of?
PN529
MR ADAMS: Yes, they are. Yes, clearly they are in excess of what would otherwise, in our submission, be payable under the award.
PN530
THE DEPUTY PRESIDENT: But then you say: and we won't reduce those rates, we will increase them but that increase won't be expressed in the agreement?
PN531
MR ADAMS: No, the actual extent of the increase on the salaries being paid won't but the rates that are prescribed in the agreement will be increased by 3 per cent over each of the next 2 years. So, the 52-and-a-half thousand dollars for a Head Chef in the agreement at the moment - - -
PN532
THE DEPUTY PRESIDENT: Will get 3 per cent applied and then another 3 per cent applied?
PN533
MR ADAMS: That is right. And the actual wage rates being paid, which are exhibited in A7, will be increased by those same amounts at the same time. So what we are trying to demonstrate is that there is a no disadvantage test that tells us we should pay X, our agreement obliges us following certification to pay Y, which is in excess of X, and the actual rates that are being paid are in excess of that again. So, to meet the strict test that the Act requires in so far as it relates to the no disadvantage test, we say that the proposed agreement does meet the no disadvantage test. More over, the actual rates that are being paid are in excess of that in any even. So even if the company were to pay employees by classification set out in the agreement, the actual rates that are in the agreement, we say, we would still meet the no disadvantage test.
PN534
THE DEPUTY PRESIDENT: Well, that is all I have got to look at, isn't it?
PN535
MR ADAMS: That is right.
PN536
THE DEPUTY PRESIDENT: It is all I can look at, isn't it?
PN537
MR ADAMS: Yes
PN538
THE DEPUTY PRESIDENT: Mr Adams, is there anything else you want to go through? There was a couple of things on your calculations I want to raise and then there is other issues I want to raise about other - as I expressed at the start, other issues in the agreement.
PN539
MR ADAMS: Yes, well perhaps if you can pose the questions in relation to the annualised.
PN540
THE DEPUTY PRESIDENT: The annualised - well the difference I note - and these might be minor, they might be significant, but I think we need to be accurate here. The four weeks annual leave calculation. One of the differences I notice between yours and Mr Llewellyn's calculation is, in his, the inclusion of various allowances, where yours appears to be the straight base rate plus 17 and a half per cent.
PN541
MR ADAMS: Yes.
PN542
THE DEPUTY PRESIDENT: What is included and what isn't?
PN543
MR ADAMS: Well on ours you are entirely correct. The four weeks annual leave - the value of the four weeks of annual leave, including the leave loading, on our no disadvantage test is a function of the weekly wage which is the wage prescribed for the classification in the Award as it currently stands, times four plus leave loading. It is not inclusive of allowances or penalties or other average earnings considerations.
PN544
THE DEPUTY PRESIDENT: So you are saying the industrial allowance is not a, like, an all purpose rate?
PN545
MR ADAMS: No. The industry allowance is calculated separately. You will see in the middle of the table, it is set out at $1079.30. The industry allowance is calculated as $20.70 per week times 52.14 weeks per year. Can you see the table at the - - -
PN546
THE DEPUTY PRESIDENT: No but the - but you have got - oh, I see, industry allowance you have got $1079.
PN547
MR ADAMS: Yes.
PN548
THE DEPUTY PRESIDENT: That is 50 - that is 20 by 52.14, is it?
PN549
MR ADAMS: $20.70 by 52.14.
PN550
THE DEPUTY PRESIDENT: I see, so you have included it there.
PN551
To include it in annual leave it would be a double count, is what you are saying.
PN552
MR ADAMS: Yes.
PN553
THE DEPUTY PRESIDENT: And there was a service allowance you haven't included for reasons you explained. The laundry allowance is the same basis as the industry allowance, whatever it is, by 52.14, is it?
PN554
MR ADAMS: No. The laundry allowance is the fixed allowance by classification times 34.76 which is the number of weeks at work as opposed to the number of weeks in a year.
PN555
THE DEPUTY PRESIDENT: I see what you have done. Okay. Thanks, that explains it. I am not saying it is right or wrong but I can see how you have done it. The other issues related to the other elements of the agreement - do you want me to go through that or raise those now?
PN556
MR ADAMS: If you wouldn't mind. While I am on my feet perhaps I could address those, yes.
PN557
THE DEPUTY PRESIDENT: Clause 6. Is that valid?
PN558
MR ADAMS: Well I think what it is intended to say is that, to the extent that the Industrial Cleaning Catering and Incidentals Services Award applies to the agreement for the purpose of the no disadvantage test, then that is a valid consideration in the context of this agreement but all other agreements and awards - - -
PN559
THE DEPUTY PRESIDENT: It is not the agreements I am concerned about, it is the Award because what this says is "All awards are excluded from having application". Now can you do that? I am referring in particular to 170LY(1)(a).
PN560
MR ADAMS: Well I suppose to the extent that reference is not made in the proposed agreement to inconsistencies between the agreement and the Award. There may potentially be an inherent contradiction but I don't think, to answer the question that you posed originally, "Can you do that?" on the strength of it, yes. I mean the agreement is intended to replace what would otherwise - the ICCIS Award to the extent that it would otherwise apply which 170LY(1)(a) would suggest on the face of it, it can do, it can prevail over an Award.
PN561
THE DEPUTY PRESIDENT: No, but what clause 6 says is not just with regard to any inconsistency but anything in the - and we will take the Award you are comparing it with, the Industrial Catering Cleaning and Incidentals Services OWU & LHMU Award, anything in that Award, regardless of whether it is inconsistent or not, has no effect. That is what the agreement says, doesn't it?
PN562
MR ADAMS: Well if you were to put that interpretation on it, I suppose that interpretation could be put on it to the extent that - - -
PN563
THE DEPUTY PRESIDENT: Well this is what it says.
PN564
MR ADAMS: Well to the extent that the Commission is of the view that that is what the effect of that provision is then I stand to be corrected. That is not what was intended.
PN565
THE DEPUTY PRESIDENT: See, how would, for example, clause 18 of the Award apply? How would - what would be the intent of the company applying that clause because on the basis of clause 6 it cannot apply?
PN566
MR ADAMS: Oh, I see what you mean. Yes, well, perhaps it could have been better constructed but the intention if clause 18 - I suppose any other clause in the Award were to be looked at in that context, the intention would be that to the extent that no reference is made in the agreement to those sorts of provisions then reference would otherwise be made to the Award. I don't think it would be fair to say the intention is or was at any stage that the agreement would be read separately and without any consideration whatsoever of any other instrument.
PN567
Clearly that would not be consistent with the provisions of 170LY(1)(a) and, in the event that it was subsequently found that it was, I would have thought that 170LY(1)(b) would have corrected that.
PN568
THE DEPUTY PRESIDENT: Yes. Well if I could then take you to clause 8 and the second paragraph of that clause. Can you explain to me how that is intended to operate?
PN569
MR ADAMS: Well what is intended then is simply that there are, as Mr Walsh has evidenced this morning, some sites where different rotations or cycles of work are performed. Not all of the sites are working at two and one and so, to the extent that there may be different arrangements at a site to which an employee is re-assigned, in particular with respect to the rosters that are being worked, for example, then the employee re-assigned to that site will be engaged in discussions with the company with a view to changing the roster in order that they can work at the other site. So that, if you are working at a site where currently, for example, a two and one is being worked and you are being re-assigned to another site where there are different arrangements in that respect, then the two and one roster at the site from which you came will not be worked at the site to which you are assigned because if the - - -
PN570
THE DEPUTY PRESIDENT: So you import - see the difficulty I have is you import into this agreement terms and conditions that aren't subject to test against the no disadvantage test but you are importing in and I have got no information and no idea as to what the import is for the purposes of establishing that it complies with the provisions of this agreement complies with the provisions of the Act. That is the - - -
PN571
MR ADAMS: Yes I can understand where you are coming from but one ought not lose sight of the fact that the proposed agreement is intended to cover all of the company's sites so to the extent that there are conditions set out in the agreement in relation to all of those areas, those conditions apply at all sites so on all the relevant parts of the agreement, for example, which are being worked at a particular site, those conditions will have equal application at the other site to which an employee may be assigned. It is not a question of changing elements of the agreement on a site by site basis because the agreement applies across all sites.
PN572
THE DEPUTY PRESIDENT: You see my difficulty and I don't - there could be a site where, you know, this Award doesn't apply at all or some other Award applies or there is no Award and there is some other instrument or form of regulation of the terms and conditions at that site. And what this says is, that other instrument is imported into this agreement for that site. Now there may be a site that there is currently - may be a site that currently the employer doesn't operate at.
PN573
MR ADAMS: Well let me respond to your question this way. The scope of the agreement is intended to apply to sites at which the employer currently engages in the provision of catering and incidental services and also to sites which the employer may subsequently win work. The intent is that the provisions of this agreement would apply both at sites where the company currently works at and at new sites. So unless I have misunderstood the import of your question, there wouldn't be a situation where, for example, the company wins a contract at a new site at which some other Award applies or some other instrument to which the company would otherwise be bound because the clear intention of this agreement is that it will have application across all of those sites.
PN574
THE DEPUTY PRESIDENT: So what you are saying is that there would not be a site that the company would be involved in that is not covered by the Award that we are comparing with.
PN575
MR ADAMS: The ICCIS Award, that is correct. Yes.
PN576
THE DEPUTY PRESIDENT: Clause 10 and the last sentence of that clause. Has that item been compared to the Award, I couldn't see on my quick examination that that is something that is currently available under the Award. The reason I raise is - I am not saying that necessarily it would mean that the agreement couldn't get up but I need to at least have a clear idea of, well, what is different to the Award. That would appear to me to be different to the Award.
PN577
MR ADAMS: If you just bear with me a moment, your Honour, I am just trying to locate the particular provision in the Award.
PN578
THE DEPUTY PRESIDENT: It might help - it is clause 17.9 is the closest I could find regarding trial period but there is nothing in there, nor could I find anything in fares of travelling or the other provisions, I haven't got the right title of it but the air fare provisions in the Award, I don't think it says you can do that under the Award, I could be wrong. Perhaps I will leave it with you Mr Adams.
PN579
MR ADAMS: I think - you have caught me somewhat on the hop and if I could take that question on notice and I will address it subsequently because I don't have the answer to hand at the moment.
PN580
THE DEPUTY PRESIDENT: Okay. Thank you. Now clause 11 and this came up, the second paragraph, the second sentence, was addressed partially in the evidence. Mr Llewellyn has identified it as something he might want to address. But the second sentence there, how is that going to be monitored and policed?
PN581
MR ADAMS: Is that the sentence that begins, "Should a roster be changed"?
PN582
THE DEPUTY PRESIDENT: No, it says:
PN583
The company will ensure that no employee will be paid less than the salary they would have received had they been paid for the time worked under the relevant Federal Award.
PN584
MR ADAMS: Well the company is a member of the Australian Mines and Metals Association, they are respondent to the Federal Award and the Association has an Award service which regularly updates member companies with respect to wage and salary and other relevant adjustments and movements in the Award. We are also aware, as is the company obviously, about the conditions of employment and the style of employment regulation at member companies and the assumption there, and it is one that has worked well previously, is always that the company, as Mr Walsh said in evidence this morning, will inform itself both through officers of the company and through the Australian Mines and Metals Association as to changes in the Award as and when they occur, and they will monitor the extent to which the agreement meets and indeed surpasses the no disadvantage test. Advice in relation to movements in the Award - - -
PN585
THE DEPUTY PRESIDENT: I don't have any difficulty - may be you misunderstood where I am coming from but the difficulty I have is I don't have any concerns about the company being aware and well informed of what the Award rates are. It is then a question of applying those rates, in particular with respect to hours and rosters and shifts and the like for particular employees and when you read the all inclusiveness of the rates in Appendix 1 with the provisions of that sentence in clause 11, it is that application that I am just querying. How is that going to be monitored and policed?
PN586
MR ADAMS: In the context of - - -
PN587
THE DEPUTY PRESIDENT: See the reason I am asking - one of the reasons I am asking is if a union comes up here and an employer comes up here and says, well, we have got a promotion of union membership clause. I invariably request, well how is that going to be applied and are you going to assure me that the freedom of association provisions aren't breached. Now I am putting that same sort of principle to you with respect to these provisions.
PN588
MR ADAMS: The company will ensure that regular assessments or that regular reviews are undertaken of the - following advice as to movements in the Award that the rates that are being paid and the rates in the agreement are at least comparable if not better than what the Award stipulates at any given point in time. In the event that there is a movement in any of those rates or conditions in the Award that would otherwise cause a review of the way the company conducts its business from salaries and conditions point of view, then the company will adjust as and when required the salaries or the conditions that are payable or which are enjoyed by employees subject to this agreement at that time.
PN589
I can't put it any higher than to say that the extent of obligation in the proposed agreement on the company is to ensure. Now how that happens in the context of the way the company conducts its business internally is something that the company will have to be mindful of. One would imagine that on each occasion when there are amendments brought to its attention in relation to the underpinning Award, that it will conduct a review of where it sits in terms of what its paying versus what it ought to pay following the amendments, and make appropriate adjustments as and when required.
PN590
THE DEPUTY PRESIDENT: The next question again is in clause 11 and it has probably been answered in my questions about clause 8 but clause 11, the one, two, three, four, fifth paragraph, second one from the bottom of the page on page 3:
PN591
From time to time employees may be required to report for work at another location or for training. On such occasions hours of work will be in accordance with that location's terms and conditions.
PN592
Again, I suppose you are saying well they would always be the terms and conditions of the Award in question that we are comparing with. Is that what you are saying?
PN593
MR ADAMS: Well, as I recall in response to your earlier question, my response was directed at two areas. One, at all sites at which the company operates, this agreement will apply. Now if an employee is re-assigned from one location to another, the hours of work that that employee will work and in particular we are referring to the rosters that are worked or the cycles that are worked, the re-assigned employee will work in accordance with the roster which applies at that location because, as Mr Walsh said in his evidence, there are times when the company loses a contract and gains another contract. It is part of the - - -
PN594
THE DEPUTY PRESIDENT: So it is all these provisions of relocations are to do with roster changes.
PN595
MR ADAMS: Yes.
PN596
THE DEPUTY PRESIDENT: And the different rosters that might be in place in different locations.
PN597
MR ADAMS: Yes because in all other relevant respects the conditions which attach to the employee would follow them from site to site because the agreement has application across all of those sites.
PN598
THE DEPUTY PRESIDENT: Thank you. I will consider that. Clause 13, the second paragraph, the deduction, if you like, from - or non-payment for schedule transport which I - from my look, it is compatible, if you like, with the provisions in the Award. The question I have though is how is that actually calculated because what we have got is an annualisation of everything in the Award but then towards people with respect to salaries is then a desegregation of that is there for an hourly basis?
PN599
MR ADAMS: If you will just give me a moment, your Honour, I will quickly consult with Mr Walsh and I will have an answer for you. Excuse me, your Honour, as I am instructed, the - it is - the company is able to calculate what the daily rate will be as a function of what the roster is. There is also at the back of the agreement, you will notice in Appendix 1, a daily rate, an all-purpose daily rate which is used as a basis, if you like, for calculations of what the daily deduction will be. Now that assumes, of course, that what actually happens is that the employee has missed the crew change and they make the assembly point and the - - -
PN600
THE DEPUTY PRESIDENT: Oh, I see. I think you have answered, if I can just interrupt. I think you have answered that. The calculation methods in the daily rate definition, if you like, within the Appendix then answers that. Leave entitlements. There is two questions here. Clause 16. One is, when compared to the Award, carers leave seems to be omitted in the agreement. Personal leave it might be - what have we got - see in the agreement, you have got - in the Award rather you have got - - -
PN601
MR ADAMS: No I think you are correct there. There seems to have been an omission. Carers leave is not mentioned either in the context of the sick leave clause or elsewhere in the leave entitlements clause and ought to be.
PN602
THE DEPUTY PRESIDENT: So the provisions of carers leave, when I go back to as far as getting out the sort of thing, when I go back to the agreement stands alone, the provisions of the Award with respect to those leave provisions that are not in the agreement would be applied.
PN603
MR ADAMS: Yes well that would clearly be the case. I think it is an omission in terms of the drafting that provision wasn't made for carers leave. Clearly the intention is that carers leave be included.
PN604
THE DEPUTY PRESIDENT: Probably other forms of leave that are there whereas carers leave is personal leave. Is that in here?
PN605
MR ADAMS: No I don't think it is but again it is answered in the context of the discussion we have had previously about clause 6.
PN606
THE DEPUTY PRESIDENT: The other provision - oh, sorry, in those leave clauses, I was just curious as to why there is reference at all to the Minimum Conditions of Employment Act and does that mean if the Minimum Conditions of Employment Act changes, those entitlements change?
PN607
MR ADAMS: Well, on the face of it, if the provision were left as it is, yes it would but, again, and it follows from the discussion we have just had, the intention would be that bereavement leave and carers leave and those other sorts of leave, would be covered in the context of the leave provisions that are otherwise set out in the Award. So perhaps some clarification is required around what was meant in the construction of clause 6 which concerns the adoption or otherwise or how inconsistencies between the Award and the proposed agreement are handled because to the extent that there are either omissions or inconsistencies - well at least as far as omissions are concerned, then the intention would be that those provisions be imported into the agreement.
PN608
THE DEPUTY PRESIDENT: Yes, you can see where I am coming from, I hope, Mr Adams, with all of this. I mean, I have - there is a requirement that the company, as alluded to before or mentioned before, the company takes all reasonable steps to ensure that the terms of the agreement are explained. Now to people who are going to be bound by the agreement, if I am having some trouble and you are having some trouble in response to my questions, how do we overcome me being assured and ensured that the provisions or the requirements of the Act with respect to that reasonable steps to explain, have been satisfactory? That is where I am having a bit of difficulty, I have got to say. May be you didn't need to intervene, Mr Llewellyn.
PN609
MR LLEWELLYN: I will endeavour to be short.
PN610
MR ADAMS: Other than the evidence from Mr Walsh this morning, your Honour, about what was said and the extent of the roll out and the discussions we had at the roll out presentations about the application of the Award in the context of the agreement, I can't add anything constructively to that which would serve to overcome the concerns that you seem to have about those aspects of the agreement. In particular, with respect to the way it has been constructed. I mean clearly the intention was that it was a minimum rates agreement.
PN611
There would be provisions in there for - to give confidence to employees that the salary they are going to be paid and conditions generally which attach to the job would be as set out in the agreement. However, the salary that is to be paid in excess of that and the conditions generally which are not mentioned in the agreement would otherwise be imported into the contracts through the ICCIS Award. Now the construction of clause 6 tends to confuse that part of it somewhat. I can understand that apprehension.
PN612
THE DEPUTY PRESIDENT: But it is not just the construction of clause 6. It is the specification in, for example, the annual leave clause where to any reasonable person they would pick up that - well, the leave clause, not annual leave - they would pick up that clause and they would say, because it covers annual leave, sick leave, bereavement leave, parental leave, long service leave, payment for leave and application for leave.
PN613
Now if I were applying for a job or if I had a job and someone gave me this agreement and said, "There is your leave entitlements". I would pick it up and say, "Well, they are my leave entitlements". I wouldn't think, well, there is other leave entitlements and I probably wouldn't even bother to ask but these provisions are supposed to be one, providing no disadvantage and two, explain in such a way that any reasonable employee would have a reasonable understanding of what their entitlements were. And it is not just clause 6. If you look at clause 16, that to me purports to cover all the leave entitlements and I would suspect, if I had not raised them today, it would.
PN614
MR ADAMS: Well I'm afraid I can't give a one word short answer to the question that you pose, your Honour.
PN615
THE DEPUTY PRESIDENT: Well it might be that it does and it is still satisfies the no disadvantage test when you take it as a whole. But that is why I am trying to disaggregate this just to try and identify what are we actually comparing and what did you intend to be compared? Now it appears that you didn't intend that leave clause to be compared with other than the provisions in it to the identical provisions in the leave clauses of the Award.
PN616
MR ADAMS: That is right.
PN617
THE DEPUTY PRESIDENT: That is what you appear to be saying. That is what you are saying.
PN618
MR ADAMS: Yes.
PN619
THE DEPUTY PRESIDENT: It wasn't clear to me before then. If I then take Appendix 1 - this will be the last one probably you will be pleased to know Mr Adams, but Appendix 1 and under the daily rate note, the paragraph:
PN620
The above rates of pay are all inclusive and take into account all responsibilities disabilities and other factors associated with the work and includes payment for all hours necessary to undertake the assigned duties including the requirement to work a reasonable amount of unrostered hours.
PN621
Now in evidence it appeared that that is not the way it is going to be applied but what the agreement says is, here is your annual rate and you will do hours beyond - you may have to do hours beyond the rostered hours but you won't get anything - any pay for that. That is what it says, doesn't it?
PN622
MR ADAMS: Oh, no. Well, that is one interpretation you could put on it. However, I hasten to add that the evidence of Mr Walsh this morning made it clear - - -
PN623
THE DEPUTY PRESIDENT: But - - -
PN624
MR ADAMS: And while I accept that perhaps that is not what the agreement actually says, to the extent that there is a query about payment for work which is outside the unrostered hours, the company's position is quite clear, that it will be paid for. It is not expected - - -
PN625
THE DEPUTY PRESIDENT: But Mr - see the problem - that what it says is it covers unrostered hours, a reasonable amount of unrostered hours. Now Mr Walsh may not be with Minesite Catering in three - two and a half years time. The people who this is currently being applied to may be moved on to somewhere else. There might be - someone else comes in as a head cook or head chef or whatever, and the payroll people look at the agreement and say, well, that is the roster but, oh, by the way, there is a regular amount of three or four hours a week but that is covered in the agreement. And that is what the agreement says.
PN626
MR ADAMS: Yes.
PN627
THE DEPUTY PRESIDENT: They are not going to come back and look at the transcript here and the evidence here. How do we overcome that?
PN628
MR ADAMS: Well, there are a number of ways it could be overcome. If the Commission were of a mind, the agreement could be conditionally certified with a requirement that some clarification be put around that aspect of Appendix 1. Clearly it is not the company's intention, based on the evidence of Mr Walsh this morning, that people work rostered hours unpaid and that one would imagine that it could be overcome by providing some clarification, either in a conditional certification process or subsequently from a communication from the company.
PN629
THE DEPUTY PRESIDENT: Yes, or some form or undertaking or something. Look, don't get me wrong, Mr Adams, I'm not attempting to infer - and I'm not inferring, that there is anything but the best of intentions by the company, but what I have got to do is look at the agreement.
PN630
MR ADAMS: Yes I accept that.
PN631
THE DEPUTY PRESIDENT: And the words of the agreement and normal rules of interpretation, as I understand them, is you take the words first.
PN632
MR ADAMS: Given their plain and ordinary meaning, yes. I am aware of that and I accept that there is some potential conjecture around what the actual entitlement is as opposed to - or contrasted to what the company's intentions are.
PN633
THE DEPUTY PRESIDENT: Yes. Okay. Thank you. Do you have anything further to add?
PN634
MR ADAMS: Not at this stage, no.
PN635
THE DEPUTY PRESIDENT: Okay. I might come back to you Mr Adams. Mr Llewellyn, I am looking at the time. Now I am wondering, just to try and expedite this, whether it would be better to either adjourn and come back either this afternoon - although I don't think anyone anticipated this would take so long so people might have other commitments, or to some other time or the alternative is that you provide me with written submissions on issues but I don't want to jeopardise what you may or how you may wish to put things. Do you have any suggestions here?
PN636
MR LLEWELLYN: I probably do, sir, and I have been watching the time. Unfortunately, I do have another matter at 2.30 and - - -
PN637
THE DEPUTY PRESIDENT: Yes.
PN638
MR LLEWELLYN: You are correct, I didn't expect this to take as long.
PN639
THE DEPUTY PRESIDENT: Well I didn't either so.
PN640
MR LLEWELLYN: One of the difficulties I have and I alluded to that I may wish now to give evidence in relation to the issues that have been raised in respect of your queries in relation to 11. And I simply raise that issue because I have had occasion to do time and wages inspections on the applicant in this matter and found that employees on salaries don't maintain time records. So it seems a little difficult to me how you would adjust someone's pay up for doing hours outside 11. That may have changed since I did the inspection though. That concerns me somewhat.
PN641
The other thing that I raise and it may or may not be fatal and that is the issue that the Commission has raised in relation to the agreement stands alone. And quite clearly in terms of that issue on its face, there are a number of agreements that are registered that purport to do away with the Award for the period of time of the agreement. I am not saying whether they are right but certainly it is something that has occurred in this jurisdiction for some time, particularly in relation to construction.
PN642
The other issue the Commission has rightly raised which has only just been brought to our attention this morning as a result of evidence of Mr Walsh and it is Mr Adams' submission that all of the work that applies to this agreement relates to the Industrial Catering Cleaning and Incidental Services Award and I would point out that that is not correct on the evidence, that being that the evidence was that, as I understand it, Monnos is a road camp which does not fit within the scope of the Industrial Catering Cleaning and Incidental Services Award because it is not a camp connected to mining that would fall under the construction and maintenance award.
PN643
And, secondly, as I understand it, I think Sandstone was some sort of village which, again, isn't connected to mining so that wouldn't come under this Award either. Now that causes me some concern because until this morning I hadn't realised - I understood they were all mines. I haven't had a chance to look at the differences in the construction and maintenance award. Now there are some corrections I need to make in terms of the documents I have provided to the Commission and I would seek to make those. But my view is at the moment I would rather adjourn and come back. I am quite happy to come back later this afternoon although I am before Deputy President Blain and, given the evidence of my - Mr Walsh that two of those three meetings were actually put off because I arranged them after a conference with Deputy President Blain that didn't finish in time, I am loathe to suggest to yourself that this afternoon's matter will be shorter than I thought it might be. So on that basis I probably think that - - -
PN644
THE DEPUTY PRESIDENT: Can I put this - I will adjourn it but what I am contemplating is, if this agreement is to be certified, then in my view there need to be very precise undertakings given that would, if you like, identify how the agreement has been explained is intended to apply, how it is going to be insurance that it complies with the like undertakings that are already in effect been given here this morning, how that is to be monitored, policed and other issues like that. So what I am considering is whether there is capacity to certify it - the reservation I have about that is the one I alluded to with Mr Adams about the compliance with LK7 but if there is capacity to certify it, that it be certified with substantial undertakings. Do you have any immediate view on that, bearing in mind the two, if you like, hats you are wearing here this morning.
PN645
MR LLEWELLYN: In terms of the undertaking, it depends on the degree of the undertakings.
PN646
THE DEPUTY PRESIDENT: Yes.
PN647
MR LLEWELLYN: Although I have had one of those already before Commissioner Laing in relation to Delta Corp and I can't remember the matter, I'm terribly sorry, but it was the agreement before last, if that helps, where there were quite severe undertakings given at that stage, and that matter went to appeal because it was a 170LK agreement. The other concern - so in terms of the undertaking it would depend on where they went to. I have greater concerns, however - and it is only fair to warn my friend because I will make a submission on it, and that was the evidence that Mr Walsh gave in re-examination in terms of the ballot. Initially I wasn't going to challenge anything in the ballot because of the additional time everyone was given, but the concern I had was Mr Walsh indicated only those employees that could prove they had sent a ballot paper off early were re-issued with a ballot paper. If they couldn't prove it the converse is also - must be correct, they didn't get one.
PN648
THE DEPUTY PRESIDENT: No you were going to pursue the procedural requirements - - -
PN649
MR LLEWELLYN: Well I am now but I wasn't until that evidence was given. That is of concern in relation to this agreement but in relation to undertakings I think it would depend on the undertakings the Commission sought and in this agreement I think by the time I am finished with the no disadvantage test, they will be extreme in the least because, as the Commission rightly points out, there are a number of issues contained in the agreement - or not contained in the agreement, I should say, that are contained in the Award that don't appear to be imported at all, including the provisions for overtime and what have you.
PN650
THE DEPUTY PRESIDENT: Yes I guess I hadn't contemplated - it might be the case but I hadn't contemplated that you could have a clause saying that it overrides the Award in toto and that therefore doesn't even - that gets you past the inconsistency test.
PN651
MR LLEWELLYN: Well it does on the basis that where - and there are a number of agreements registered in this jurisdiction that purport to override the Award for the period of the agreement as do, in fact, a number of AWAs. And it is not uncommon. As I said, if one looks at a number of the construction agreements, for example, all of the Burrup construction agreements, you will find that they override the Award for the period of time of the agreement, all of them.
PN652
THE DEPUTY PRESIDENT: They are relatively comprehensive though aren't they? There were no - -
PN653
MR LLEWELLYN: That is correct and on that basis they can - - -
PN654
THE DEPUTY PRESIDENT: Yes.
PN655
MR LLEWELLYN: But there is nothing in the Act that prevents you having an agreement that overrides the Award.
PN656
THE DEPUTY PRESIDENT: Yes.
PN657
MR LLEWELLYN: I think the test is then - - -
PN658
THE DEPUTY PRESIDENT: You have to go through all those - we have to go through all of the items for disadvantage, not just.
PN659
MR LLEWELLYN: Well or as Mr Adams suggested - I mean if it were a case that, for example, the wages were increased and there has been those arguments where the wages have been increased substantially to take into account, for example, we brought out the annual leave, we have brought out the long service leave and the wages and here is a calculation to show the Commission where those amounts of money were placed into the annualised rate, then obviously on a test overall an agreement that overrode the Award and didn't mention any of those portions of leave - - -
PN660
THE DEPUTY PRESIDENT: They need to be taken into account or should be.
PN661
MR LLEWELLYN: Would be taken into account but overall there may be no disadvantage because you have already physically got the money and, on that basis, the Award can be overridden and the thing that concerns me in this agreement is, on the face of it, clause 6 does away with the Award completely and when you interpret, I don't - - -
PN662
THE DEPUTY PRESIDENT: And that is not what has been said this morning.
PN663
MR LLEWELLYN: Well the trouble is, what has been said and what the agreement says in a number of areas has not been what was said this morning. And that leads me to the submission I made at the start, that one of the concerns we have is that the agreement has not been explained to these employees as - - -
PN664
THE DEPUTY PRESIDENT: Well it brings you back to LK7, doesn't it?
PN665
MR LLEWELLYN: It can't be explained to the Commission.
PN666
THE DEPUTY PRESIDENT: Yes.
PN667
MR LLEWELLYN: And quite simply I don't - I am not terribly sure that even Mr Walsh or Mr Adams are convinced that they know the explanation of the agreement at this point in time.
PN668
THE DEPUTY PRESIDENT: Yes. Well look what I will do, both of you, is adjourn this and I will seek to have this re-listed fairly quickly. i won't be all that receptive, I have got to say, to unavailability but I will ensure that both your interests are protected in the sense of capacity to put material to me one way or another. In the meantime, I think if three things could happen. One is if between you, you could try and come up with a common interpretation of the two spread sheets in effect that you sent me yesterday so that we have got a common ground there. I don't think you are actually that far apart, quite frankly on that.
PN669
Secondly, if there could be some consideration of the other elements of the Award that are not included in the agreement or in the schedule you sent me, Mr Adams, for comparisons. I need to do a whole comparison, not just a rates comparison from what has been provided today. And can I leave that in your hands, Mr Adams?
PN670
And thirdly, if you could both give some thought, I do not take it any further than that, of undertakings that might be able to be provided that would give me, at least, and your members, Mr Llewellyn, probably some comfort in how the agreement is going to be applied. So if those three items - I also might also mention that my preliminary, but very probably view is that the union will be a made a party to the agreement based on what has been put so far in the evidence to me so far. I think there is an obligation on me in any event given that you have given notice as required, etcetera. So, there is that added, I suppose, capacity or comfort.
PN671
MR LLEWELLYN: Perhaps rephrase that to be, bound by the agreement, rather than a party?
PN672
THE DEPUTY PRESIDENT: Bound by the agreement; you are quite accurate. So, I will adjourn on that basis at this point and my associate will be in contact with you but I would request that those three items I have just mentioned do get addressed by you both. Thank you. This matter is adjourned.
ADJOURNED INDEFINITELY [1.43pm]
INDEX
LIST OF WITNESSES, EXHIBITS AND MFIs |
EXHIBIT #A1 LETTER FROM EMPLOYMENT ADVOCATE PN103
PN120
ANTHONY THOMAS WALSH, AFFIRMED PN130
EXAMINATION-IN-CHIEF BY MR ADAMS PN130
EXHIBIT #A2 LETTER TO STAFF MEMBERS DATED 15/03/2002 PN143
EXHIBIT #A3 SECOND LETTER TO EMPLOYEES DATED 02/04/2002 PN166
EXHIBIT #A4 FAXED LETTER TO EMPLOYEES ON 22/04/2002 PN173
EXHIBIT #A5 LETTER TO MR WALSH FROM MR LLEWELLYN DATED 15/04/2002 PN182
CROSS-EXAMINATION BY MR LLEWELLYN PN204
EXHIBIT #R1 CORRESPONDENCE FROM MR WALSH PN245
EXHIBIT #R2 CALCULATION OF SALARY SHEET PN268
EXHIBIT #R3 COPY OF LETTERS SENT TO AWARD EMPLOYEES PN282
EXHIBIT #R4 RESOURCE MAP PN352
RE-EXAMINATION BY MR ADAMS PN359
WITNESS WITHDREW PN417
EXHIBIT #A6 FAX TO THE DEPUTY PRESIDENT DATED 3/07/2002 PN439
EXHIBIT #R5 FAX AND E-MAIL TO THE DEPUTY PRESIDENT FROM MR LLEWELLYN PN439
EXHIBIT #A7 MINESITE CATERING STAFF LISTING ANNUALISED RATES OF PAY PN519
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