C2002/2806, Transcript of Proceedings [2002] AIRCTrans 3535 (12 September 2002)

AUSCRIPT PTY LTD
ABN 76 082 664 220

Level 4, 179 Queen St MELBOURNE Vic 3000
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TRANSCRIPT OF PROCEEDINGS


O/N VT05494
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT POLITES

C2002/2806

ENERGY DEVELOPMENTS LIMITED
- AWU HYDROCARBONS, GAS AND
ENERGY AWARD 2001

Application under section 113 of the Act by the
Australian Workers' Union to vary the above
award re Safety Net Review - Wages May 2002

MELBOURNE

10.49 AM, TUESDAY, 27 AUGUST 2002

Continued from 12.6.02 in Sydney

PN45

MR F. TURNER: I seek leave to appear for Energy Developments Limited.

PN46

MR G.R. BEARD: I appear on behalf of the Australian Workers' Union; with me today is MR I. WILSON.

PN47

THE SENIOR DEPUTY PRESIDENT: Thank you. Well, do you oppose Mr Turner having leave, Mr Beard?

PN48

MR BEARD: I have tried that in the past, your Honour, and I think it would be a futile exercise.

PN49

THE SENIOR DEPUTY PRESIDENT: I think, given the history, it is probably - - -

PN50

MR BEARD: So I think we will save some time.

PN51

THE SENIOR DEPUTY PRESIDENT: Yes. Leave is granted, Mr Turner.

PN52

MR TURNER: Thank you, your Honour.

PN53

THE SENIOR DEPUTY PRESIDENT: Yes, you proceed.

PN54

MR TURNER: Your Honour, this is an application by Energy Developments Limited under section 111(1)(g). I have distributed a written summary of my submission which I am trying to really strictly - or not strictly, but basically adhere to, but I will be calling evidence later in the submissions to support them.

PN55

THE SENIOR DEPUTY PRESIDENT: Yes.

MFI #1 WRITTEN SUMMARY OF MR TURNER

PN56

MR TURNER: Thank you. I make application of the Commission to refrain from further hearing or determining matter C2002/2806 whether in conference, conciliation or arbitration on the basis that further proceedings are not necessary or desirable in the public interest. I say that by section 111(2) an application can be made under this subsection to cease hearing the proceedings. I am not seeking a permanent dismissal or refraining from further hearing the application to vary. I am just seeking that the refrain be until after the certification proceedings of an agreement which is currently being voted on by the employees of EDL.

PN57

I seek that the letter to your Honour, dated 28 August, together with this outline of submissions be treated as the application proper and that any further requirements of the Act, regulations or rules be dispensed with. Although looking at the Act regulations and rules I can't see that there is any other formal requirement.

PN58

THE SENIOR DEPUTY PRESIDENT: No, there isn't.

PN59

MR TURNER: Our application relates to the circumstances that an agreement has been negotiated between EDL and its employees. It has been negotiated against the background of the current award. That award has been consolidated by EDL and provided to the employees as part of what we call the ballot pack which went out at the beginning of the consideration period of the agreement. That consideration period went from 29 July to 14 August this year, then the ballot opened on 15 August and closes 30 August. So the ballot is currently being conducted, and the Electoral Commission is to advise the company of the outcome of the vote by 2 September. Then, of course, if there is a yes vote we will be lodging an application immediately for certification under section 111(L)(k).

PN60

My submission is that variation of the award now, or even in the company being seen to be discussing variation to it creates uncertainty in the minds of the employees who are being asked to vote on this agreement at present, and that is against the objects of the Act, to be creating that uncertainty and possible disincentive to voting in favour of this agreement. Object 3(d) of the Act is:

PN61

To provide the means for wages and conditions to be determined by agreement as far as possible.

PN62

Object 170L is:

PN63

To facilitate the making and certifying of agreements.

PN64

And I emphasise the making there. The Commission is to do things which facilitate employees entering into agreements. I can see there might be an argument against me this morning, well, you have got no formal agreement yet, how can you be making this application? I say the Commission's obligations go as far as encouraging or facilitating the making of agreements, that to grant this order that we are seeking would facilitate that.

PN65

THE SENIOR DEPUTY PRESIDENT: I am not sure whether it is smart to get into this area, but I am not sure that section 170LK contemplates an agreement in the form that at law it might be understood anyway because it simply requires the employer to distribute something and then the people to vote on it and if they vote yes, it is an agreement.

PN66

MR TURNER: Yes, yes. Well, the vote is probably their signature in common law terms, I suppose. And object section 88A(d) is:

PN67

To ensure that the powers to make and vary awards are -

PN68

and I say in this context that means must be, those powers must be -

PN69

exercised in a way that encourages the making of agreements.

PN70

So I say the exercise of the powers under the union's application to vary matter should be carried out in a way that encourages the making of agreements. And that merely is, for instance, adjourning the application to vary until after we see what the employees say about this agreement. That in itself will encourage the making of the agreement. Discussing variations to that document, the base document, mid-stream through this process of consideration of the ballot period can't encourage the making of the agreement and must create uncertainty.

PN71

Now, in Sydney on Thursday the directions of Commissioner Jones of 28 November 2001 were raised by my learned friend. I just want to deal with those because I say they relate to a totally different application to vary than the one behind these current proceedings. Those directions are contained in order PR911934. Now, the base EDL award or the main EDL award was simplified by your Honour on 5 July last year, and direction (1) of Commissioner Jones' directions by that he directed the union to file its application setting out where it is said that the award simplification process was in error. And that application was to be filed within seven days, which had to be 5 December.

PN72

The union's application was filed on 6 December and the matters raised in that application were dealt with by your Honour when the further certification - further simplification proceedings came on, and an order was issued on 16 May this year, PR917853. Now, in that order your Honour referred specifically to the union's application raising these further matters. And direction (2) of Commissioner Jones' directions expressed the hope that the application to fix up matters which the union said weren't dealt with properly in the first simplification order would be heard by 24 December 2001. So the filing of the application by the union and your Honour's order in May 2002 complied with directions (1) and (2). Direction (3) was that:

PN73

While the award simplification matter is progressing, the parties should not preclude themselves from addressing issues raised in regards to their proposed new CA.

PN74

And, of course, that is what has been happening. There was a section 170LJ negotiated but then the union withdrew from that in the middle of the year, and now there is a 170LK in process. So he said the parties shouldn't preclude themselves from addressing the matters. The CA, the certified agreement committee met on 4 June once the award simplification matter had been finalised by your Honour's second order so direction (3) was, therefore, complied with.

PN75

Direction (4) was that once the award has been dealt with which we say means simplified, and your Honour has done that twice, and has handled the matters raised in the application which Commissioner Jones directed the union to file, and did file back in December last year; he said, once that is no longer an issue, all parties to the CA negotiations should be provided with an updated copy of the award to assist them with their further discussions.

PN76

Well, EDL did consolidate the award and distributed it to all employees with the ballot pack to assist them in considering whether what they were being offered in the 170LK agreement, how that compared with their current conditions. So to change that document now when they are sitting down deciding whether to vote would frustrate and be a disincentive to voting in favour of it, and that is not acting in a way which facilitates the making and certification of agreements. So all directions of Commissioner Jones have been complied with.

PN77

But then the union slipped in another application to vary in May this year, just said, oh, here is another application dealing with some more matters. And now the AWU is trying to further amend verbally that application to include additional matters. And this sort of - it is not an abuse of process but this sort of procedure doesn't encourage parties reaching agreement. I know the AWU is upset about the fact that they are not a formal party to these negotiations but there are obligations under the Act and we seek that the Commission exercise those obligations in a way which facilitates the making of the agreement between EDL and its employees.

PN78

And the last two directions of Commissioner Jones were directed to bring about the possibility of the fast tracking of the certification of the agreement. Of course, that fast tracking aim was why a 6 per cent wage increase was paid from July 2001 but that was paid on the basis that the union would co-operate in getting the agreement certified quickly. But then, of course, in the end it denied there was ever any agreement entered into. At this stage, your Honour, I would like - - -

PN79

THE SENIOR DEPUTY PRESIDENT: But you would say in any event that directions (4) and (5) were directed at the proposed LJ agreement and not this agreement?

PN80

MR TURNER: Well, yes. Well, the parties reached agreement, and I say that all his directions have been complied with. There is not one that hasn't been complied with, although the dates are a little askew from what he intended. Your Honour, I would now like to call Kim Timmins to give evidence.

PN81

THE SENIOR DEPUTY PRESIDENT: Yes.

<KIM MARIE TIMMINS, SWORN [11.02am]

<EXAMINATION-IN-CHIEF BY MR TURNER

PN82

THE SENIOR DEPUTY PRESIDENT: Yes, Mr Turner.

PN83

MR TURNER: Would you please state your full name again for the record?---Kim Timmins.

PN84

Your Honour, I am going to ask Ms Timmins to - Mrs Timmins to state her work address. She doesn't feel comfortable disclosing her private address.

PN85

THE SENIOR DEPUTY PRESIDENT: Yes, that is fine.

PN86

MR TURNER: Yes. Could you state your work address, please?---848 Boundary Road, Richlands, Queensland.

PN87

Thank you. And is Energy Developments Limited your employer?---Yes.

PN88

And what is your role there?---I am Human Resources Adviser.

PN89

Yes, thank you. And that company has a certified agreement?---Yes.

PN90

Has EDL been renegotiating that agreement to reach a new agreement?---Yes.

PN91

Yes, and how long have those negotiations been taking place?---They began in early 2001.

PN92

And has a new agreement been put to the employees of EDL for their consideration?---Yes.

**** KIM MARIE TIMMINS XN MR TURNER

PN93

And do you know when the consideration period ran for that new agreement?---Yes. It started on 29 July 2001 and it - the consideration ended on 14 August - sorry, 2002; 29 July 2002 to 14 August 2002.

PN94

As part of that consideration process did EDL distribute a ballot pack to all employees to be affected by the agreement?---Yes.

PN95

And did that include a copy of the EDL award?---Yes, an unofficial consolidated copy.

PN96

An artificial?---Yes.

PN97

Sorry, what do you mean by that?---What that means is that the award had the previous orders for the award simplification and the two safety net review adjustments included within the award. We hadn't actually received an official copy from the Industrial Relations Commission so we had been advised from the Commission to put an unofficial copy together explaining what we had done.

PN98

Right. Sorry, I misunderstood you. I thought you said artificial?---No.

PN99

THE SENIOR DEPUTY PRESIDENT: Unofficial I think was the - - -

PN100

MR TURNER: Yes, thank you. Yes, thank you. And is the ballot currently being conducted for this new agreement?---Yes.

PN101

When did the ballot open?---On 15 August this year.

PN102

And when is it to close?---30 August.

**** KIM MARIE TIMMINS XN MR TURNER

PN103

And have you had any indication from the Australian Electoral Commission as to when the results of the ballot will be available?---We are anticipating a formal notification by 2 September at the latest.

PN104

Were you a party to a telephone conference between Mr Dean Sparshott, of your company, and Mr Beard on 25 July 2002?---Yes.

PN105

Was anything said about the next step in negotiations after that date, how that step was to be conducted?---Yes. We discussed the items that were within the variation, and there was four outstanding matters that we needed to look into, the company to look into. And we discussed that we would get back to Mr Beard within 10 days after we did some research on the outstanding matters.

PN106

When you say there were four matters outstanding, did that mean you agreed to all other matters?---No, we didn't agree to any of the items.

PN107

Yes, okay. Was anything said by Mr Beard about when he was expecting the variations to be finalised or included in the matter they were discussing with you?---Yes, he said that he didn't think that it would be finalised and processed by the time of certification of the agreement was made.

PN108

Yes, thank you. I have no further questions, your Honour.

PN109

THE SENIOR DEPUTY PRESIDENT: Mr Beard.

<CROSS-EXAMINATION BY MR BEARD [11.06am]

PN110

MR BEARD: Ms Timmins, the conversation on 25 July - and you were saying that the company was to provide a response within 10 days. Was the company to provide a written response or just a response?---No. In the discussion there was no mention of how we were to respond. The company had assumed that it would be by phone conference again, as the discussion was on the 25th.

**** KIM MARIE TIMMINS XXN MR BEARD

PN111

You don't have a tape recording of the conference, do you?---No.

PN112

Because - - -?---I have handwritten notes though of the discussion.

PN113

All right. So you can recall the conversation I had in regard to the possibility that the matters weren't going to be finalised, but you can't remember that I asked for a written response in regard to the company's position?---No, you didn't ask for a written response. You asked us to get back to you within 10 days. You didn't specifically say a written response at all.

PN114

And what was the response within 10 days?---Okay. I had a phone conversation with you, I think it was about the eighth day of - like, within the 10 days you called me - sorry.

PN115

It was the day before, but go on. Yes?---Okay, yes, the day before the 10 days, and asked for a written response to the outstanding matters. And I explained to you that we were still in discussions; that I would pass the message on to Dean Sparshott and - but I had thought that we were still in discussions and that we weren't going to the point of formal notification of where we were up to. And I passed the message on to Dean Sparshott and he put a letter together for you on that day, the next day.

PN116

Right, thank you. No other questions.

PN117

THE SENIOR DEPUTY PRESIDENT: Any re-examination, Mr Turner?

PN118

MR TURNER: No, your Honour.

PN119

THE SENIOR DEPUTY PRESIDENT: Thank you. Well, thank you for your evidence, Ms Timmins. You may step down?---Thank you.

<THE WITNESS WITHDREW [11.08am]

PN120

THE SENIOR DEPUTY PRESIDENT: Your next witness, Mr Turner.

PN121

MR TURNER: That is the only evidence - - -

PN122

THE SENIOR DEPUTY PRESIDENT: That is - sorry, I thought you said you had two.

PN123

MR TURNER: No, no.

PN124

THE SENIOR DEPUTY PRESIDENT: No. Very well.

PN125

MR TURNER: Your Honour, I ask that the Commission not deal further with the application to vary until after the hearing of the certification of the agreement, and in support of that I say that that timing was foreseen by Mr Beard on 25 July anyway in these discussions. He didn't anticipate this application to vary being finalised before certification. I submit your Honour has the power to make such an order by combining the powers under section 111(1)(g), (m) and (t).

PN126

In a combination of those powers you can make an order to refrain from hearing a matter until the specified date. You don't have to refrain permanently. You can just say: all right, I will refrain for a period, and the period being till after the hearing of the certification. Alternatively, I ask that the other matter, the application to vary, be adjourned pursuant to section 111(1)(m) again to a date to be fixed after the certification hearing. If your Honour pleases.

PN127

THE SENIOR DEPUTY PRESIDENT: Yes, thank you, Mr Turner. Mr Beard.

PN128

MR BEARD: Thank you, your Honour. I hope your office received the union's submission. Unfortunately, it was late yesterday afternoon but it was the earliest I was able to distribute it to your office and to Mr Turner.

PN129

THE SENIOR DEPUTY PRESIDENT: This is your outline, Mr Beard, is it?

PN130

MR BEARD: That is correct.

MFI #2 OUTLINE OF SUBMISSIONS BY MR BEARD

PN131

MR BEARD: Thank you, your Honour. Well, obviously the union asks that the Commission dismisses the application made by the company and continues the processing of the award variation. With the reasons for the union's application in regard to this matter, on Thursday at the conference before you I gave a background history in regards to the development of the application and it was apparent throughout the simplification process that there were matters that needed to be dealt with to bring the award up to an appropriate standard. However, some of those standards weren't test case standards and, therefore, couldn't be pursued through the item 51 review. It was quite evident that those applications would be, in fact, subject to a separate application.

PN132

And also the matters that were being - concerned in that application, your Honour, obviously were going to be of a reasonably complicated matter. And at the time the parties were having a fairly complicated time with the item 51 review. The matters were brought to a head late November 2001 where discussions between the parties in regard to the new enterprise agreement meant that the union, in fact, had to file a section 99 dispute notification which then became - had a C number 2001/5913, and that was subject to the conference and then to the directions issued by Commissioner Jones.

PN133

Now, the only relevance, in fact, in regard to that matter we believe, your Honour, is that the Commissioner did ask that residue concerns be included in a draft document to be supplied by the AWU and also the other areas in regard to the item 51. Now, that document was prepared and was presented to the Commission on 6 December, and had Mr Turner read the directions carefully he would have known that it was seven working days from the date of the direction from Commissioner Jones. Now, it is only a very minor point whether it is five days, seven days or whatever.

PN134

MR TURNER: I don't wish to rely on that, Graeme.

PN135

MR BEARD: No, I didn't think so but just pointing out a fact that there was a reference to trying to say that the union didn't, in fact, fulfil its obligations.

PN136

MR TURNER: Your Honour, I withdraw that inference if that was taken. I didn't intend that, it was just setting out the dates in the directions.

PN137

THE SENIOR DEPUTY PRESIDENT: Okay. Thank you, Mr Turner.

PN138

MR BEARD: And the application - in fact, the document was set out in a draft order format to try and make it quite clear to the company the areas of the award that the union thought should be varied and the manner in which we thought they should be varied. Now, that particular document, unfortunately, wasn't subject to discussion between the parties. It was, in fact - we were forced to have a conference chaired by yourself on 10 January 2002. There was no prior discussions between the company and the union until the conference with you, and at that stage essentially the company's submission was that it rejected everything that the union had put forward.

PN139

Again, because there were matters involved in that draft document which alluded to the wage rates in the award which were still subject to basically the simplification process, the union decided to deal with those issues and then again to set aside the other award issues. And that was I believe quite plainly stated at the time, that we would try and deal with the simplification areas because we hadn't completed those, and then we would move to those other award areas.

[11.15am]

PN140

As you know, the wage rates for the award simplification situation was finally satisfied. Agreement was reached and you issued an order accordingly which would have been - excuse me, your Honour. But it was dated 16 May, recorded PR917853. So we have essentially, your Honour, the item 51 review of the award being finally completed on 16 May 2002. The union then, on 28 May, filed its application in regard to those residual matters to ensure that the award was brought up to a proper level. So when Mr Turner is saying that the union slipped in another application, I do take offence to that.

PN141

There was no slipping in another application. It was one that had been foreshadowed for quite a period of time and the company was well aware of the areas that the union wanted to further discuss. Going back to your outline, your Honour, sort of, essentially, that takes in the first couple of points of the reasons for the application. 2.3, we believe, is essential in the presentation of this matter because we believe, that the other matters that we recognise as being deficient, needed to be addressed to ensure that the award provided a proper safety and a fair minimum wages and conditions of employment.

PN142

And obviously you are aware of sections 88AB and 88BA and these sections in the Act are most important regarding the making of enterprise agreements. You cannot have an enterprise agreement without a proper safety net award which provides the basis for comparison. As we know an enterprise agreement, whether it is a section 170LK or a section 170LJ agreement, will not be ratified if it fails the no disadvantage test which is - I have got the relevant section there - which raises the issue of the timing in regards to this particular matter.

PN143

Whilst there is a ballot going on at this stage that really does not mean that a document will reach an agreement stage. That is still something that is in the future. It may in fact be settled at some stage in the future, it may not, but does that mean that an award can't be varied to ensure that it does maintain itself as a proper safety net award for the purposes of encouraging enterprise agreements. At 2.4, your Honour, I raise some of the issues that are included in the union's application. When I say application in regard to this matter, again, the items were set out in a draft order format so that the company knew exactly what the union was looking to change or to insert and how we were looking to provide that provision.

PN144

So they have had ample opportunity to further discuss a realistic position in regard to the union's proposal. Now some of these issues - we have got some test case issues as Mr Turner quite rightly said. At the teleconference held on 25 July I did amend the application with the company to include the reasonable hours test case provision as provided by a Full Bench decision on 23 July 2002. You are probably well aware, your Honour; it was PR72002. Now, that test case provision has the capacity, as a test case provision, to go into all Federal awards. Other matters in the application dealt with wage rates.

PN145

There was - in fact the first item of the application dealt with the safety net review of May 2002. Now that has been processed. Now that was subject to a hearing before yourself on 12 June 2002 and recorded, PR919814. So we have already processed part of this application. We are looking to vary the award in regard to the casual entitlements. Again, your Honour, you are very well aware of the variation to the Metal Industry Award in 2000, I think, where the casual loading was increased by 5 per cent. There was an opportunity for casual employees of a long term nature to be able to elect to become a full time employee in some form.

PN146

Whilst that was not a test case provision, and we understand that, we believe that it is important for the company and the union to have further discussions in regard to those issues to ensure again that the award does provide this proper safety net area. The claim in regard to casual entitlements was not a pie in the sky situation. It is not an unrealistic claim just thrown in to try and further delay things or anything like that. It is obviously quite a legitimate and serious situation to be considered. We have sought to include a new classification structure.

PN147

This is a very important matter because we believe that, for the purpose of no disadvantage in the proposed agreement, there is a real difficulty currently to be able to compare wage rates and the classification structure in the award with the wage rates and classification structure as set out in the agreement. And that will, obviously, be subject to further dealings in due course. But, again, it is a matter that - it is a legitimate matter to be discussed. There are areas in regard to the hours of work where currently the award states that casuals work an eight hour day.

PN148

We would like to further discuss that particular issue because we believe it is a 38 hour week. If a casual is working an eight hour day surely he would - he or she would be accumulating at least 24 minutes a day but that seems to have been neglected in the award. We are looking to rectify that situation. Employees who are working on a continuous shift currently have four weeks annual leave and not five weeks as is the community standard. And for those reasons the union believes it does have a right under section 113 to file and have the application processed by the Commission as quickly as practicable.

PN149

Your Honour, the company's submission, we believe, is because the processing of the enterprise agreement is at the ballot stage, it has not been completed and it may not be completed for quite a while. It is one thing to have employees say they did vote to accept the document that has been put forward to them at present, but if in fact it is proved that that document does in fact disadvantage employees, well, then that document will not become a ratified agreement. The company is saying that it is not in the public interests for the union's application to proceed. Well, as stated in the submission, we believe - in the outline - we believe that it is not in the company's interests for the application to proceed.

PN150

However, we do believe, in the public interest - if the public interest is seen from the employees' point of view, it is most important that the application proceed. The company is saying that there could be a frustration to the certification process and there could be uncertainty for employees in the agreement making situation. We believe that the employees should be entitled to make decisions on an award base that is up to date and as appropriate as possible. We believe that if's and maybe's, as stated by the company, should not be given any weight with considering further processing of the union's application.

PN151

Moving on to 3.8, your Honour, the processing of any enterprise agreement, we believe, should not inhibit variations to an award. We believe that this is an important precedent that could be set. Some of the matters contained within this particular application have already been dealt with. There is no reason why we shouldn't continue the process in terms of the application. Considerable time has elapsed during the course of the current enterprise document. How long do the employees have to wait for a situation such as test case provisions to go into the award?

PN152

If the agreement does in fact last for two or three years that has the capacity to - well, not the capacity - will, in fact, override the award. So in the longer term, the employees have the capacity to be disadvantaged. The company was aware of the union's application on 28 May when it was handed a formal document, your Honour. However, we still believe that the company was well aware of the concerns put forward by the union back on 6 December 2001. They haven't been pro-active in trying to deal with those matters.

PN153

And in fact, following my conversation with Ms Timmins on 8 August this year, I did receive a letter from Mr Sparshott on behalf of the company, stating that - I do have a copy of the letter for the Commission's file.

PN154

THE SENIOR DEPUTY PRESIDENT: Yes, thank you. Exhibit - - -

PN155

MR BEARD: I will also take the opportunity, your Honour, to hand to you a copy of my reply.

PN156

THE SENIOR DEPUTY PRESIDENT: We might mark them as a bundle.

PN157

MR BEARD: Thank you, your Honour.

PN158

THE SENIOR DEPUTY PRESIDENT: This will be B1. There is a statement of service which is exhibit 1 but this will be exhibit B1.

EXHIBIT #B1 BUNDLE OF DOCUMENTS

PN159

MR BEARD: These documents, your Honour, are just - I am sorry.

PN160

THE SENIOR DEPUTY PRESIDENT: It is all right.

PN161

MR BEARD: We are one each now.

PN162

THE SENIOR DEPUTY PRESIDENT: Thanks, Mr Beard.

PN163

MR BEARD: The purpose of documents, your Honour, is just to show that we believe that the company has not taken a positive view in regard to discussing these matters. Consistently, there has been the delaying situation. And the letter that I forwarded again on 9 August - I just put down in writing another request for a written response so that the union could properly consider the matters that were raised by the company and to be able to provide the company a thoughtful and progressive answer. Now, we are trying to deal with these matters in a sensible way.

PN164

They are not issues that are easily dealt with, we understand that. We have been looking to discuss them properly and openly and I think my remark in regard to our teleconference on the 25th - I don't exactly remember the connotation or the context - but there are some matters here that will be dealt with that could go past the certification - possible certification and there is nothing wrong with that. There are other matters that can be dealt with as soon as possible such as the test case provisions.

PN165

In fact I sent through a copy of a draft order prepared by the union on Friday to the company in regard to the processing of the test case provision for the reasonable hours and also for public holidays. Now there is no reason why, at least, those two matters can't be processed in a minimal amount of time. Obviously we would like to have all of the matters finalised as soon as possible and that is what this application is about. The company's application is to try and delay things as much as possible. It is to ensure that the award stays as it is so it does not in fact provide a proper base for a proper no disadvantage test.

PN166

And we believe it would, in fact, provide a disadvantage to the employees. Your Honour, I will conclude my submission, if that pleases your Honour.

PN167

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Beard. Mr Turner, in response?

PN168

MR TURNER: Thank you, your Honour. Your Honour, the fact that the starting clause of the application to vary has been handled is not against us in this matter. That was handled on 12 June. An order was made. We thought it appropriate that the latest safety net increase be included in the award. It was consolidated into the award which was provided to the employees before the consideration period started as part of the negotiations; as part of their consideration. It is the background to the ballot which is now being conducted.

PN169

As to the classification structure it was conceded by my friend that that wants to be put into the award in order to have some impact on the thinking of the employees in this ballot and as to - well, to change the base on which the no disadvantage test is to be considered. But the classification structure has flowed from negotiations for an enterprise flexibility agreement many years ago and through the certified agreement in 1998. Section 95 says the Commission doesn't have the power to include in awards conditions which are based on a certified agreement unless those provisions meet the tests specified in the Act. Section 95:

PN170

The Commission does not have the power to include terms in an award that are based on the terms of a certified agreement unless satisfied that it would not be inconsistent with Full Bench principles.

PN171

Now, the Full Bench principles of May 2001 says:

PN172

The Commission should vary awards so that they encourage the making of agreements. And including this classification structure from a CA - from negotiated settlements into the award - will not encourage the making of an agreement.

PN173

And I submit that inserting the CA classification structure into the award could disencourage EDL from wanting to enter a further certified agreement. These are the things it has given away in the past to get the agreements it has. If you put all these things into an award what is in the interests of EDL to be giving away further matters. The other part of section 95 is that it would not be otherwise contrary to the public interest. I say discouraging the making of agreements is contrary to the public interests for the reasons I stated earlier.

PN174

So that is one matter in the application to vary of which there will be very strong opposition. Indeed, most of the matters - there is a very strong ground for opposing them. It is not simply a matter of just flowing things in test case standards because it has been conceded by my friend that many of the matters are not test case standards. That is why, he says, they couldn't be included in the section 51 review. My friend then pointed to part of their submissions saying it was only in the company's interest that the union's application not proceed.

PN175

Our feeling is that it is in the employees' interest, many of whom are not represented by the union, and in the company's interest that the application not proceed. We are then criticised in a way, or the implication is, that the considerable time that has elapsed in negotiation of the agreements lies at the feet of the company. But we reached what we thought was a section 170LJ agreement and then suddenly the union walked away from that. They have their reasons which have been explained but the considerable time period could have been cut short very much.

PN176

An agreement would have been operating six months ago if, as we believe, the union had reached agreement; if it had merely signed the document. Now the - exhibit B1, we wrote to the union saying we would like:

PN177

We are prepared to have another meeting with you to discuss the matter further. Please advise of your availability.

PN178

The response shot back the same day:

PN179

We are seeking to have the matter re-listed.

PN180

That is the union's way of negotiating these matters. We were seeking further discussions. No, let us go to the Commission. They are the only matters I wish to respond on, your Honour.

PN181

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Turner. Well, I do want to consider what has been put, to look at the notes and the MFIs, but I won't keep you waiting long. The decision will be out within a day or so. We will adjourn on that basis.

ADJOURNED INDEFINITELY [11.38pm]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

MFI #1 WRITTEN SUMMARY OF MR TURNER PN56
KIM MARIE TIMMINS, SWORN PN82
EXAMINATION-IN-CHIEF BY MR TURNER PN82
CROSS-EXAMINATION BY MR BEARD PN110
WITNESS WITHDREW PN120
MFI #2 OUTLINE OF SUBMISSIONS BY MR BEARD PN131
EXHIBIT #B1 BUNDLE OF DOCUMENTS PN159