AG2002/4928, Transcript of Proceedings [2002] AIRCTrans 3791 (26 September 2002)

AUSCRIPT PTY LTD
ABN 76 082 664 220

Level 4, 60-70 Elizabeth St SYDNEY NSW 2000
DX1344 Sydney Tel:[phone] Fax:[phone]

TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT POLITES

AG 2002/4928

APPLICATION FOR CERTIFICATION OF AGREEMENT

Application under Section 170LK of the Act
by Energy Developments Limited for certification of the
Energy Developments Limited and Employees of the Company
Certified Agreement 2002

SYDNEY

3.36 PM, WEDNESDAY, 11 SEPTEMBER 2002

Hearing continuing

PN1

THE SENIOR DEPUTY PRESIDENT: Could I have appearances, please.

PN2

MR F. TURNER: Your Honour, I seek leave to appear for Energy Developments Ltd and Energy Developments Group Operations Pty Ltd.

PN3

THE SENIOR DEPUTY PRESIDENT: Yes, Mr Turner. Any objection to that.

PN4

MS K. PARKER: No, your Honour.

PN5

THE SENIOR DEPUTY PRESIDENT: Thank you.

PN6

MS K. PARKER: Your Honour, I seek leave to appear on behalf of the Australian Workers Union and I appear with MR GRAHAM ROBERTS, the Assistant National Secretary of the Union.

PN7

THE SENIOR DEPUTY PRESIDENT: And, Ms Parker, is it right to say that the AWU has authorities under LK4?

PN8

MS PARKER: Yes, your Honour, and we seek leave to intervene.

PN9

THE SENIOR DEPUTY PRESIDENT: Do you have any objection to that, Mr Turner, in the light of the fact.

PN10

MR TURNER: If your Honour is satisfied that 43(2) has been met.

PN11

THE SENIOR DEPUTY PRESIDENT: Well that is why I asked the question and I usually take people's word for it.

PN12

MR TURNER: Yes, we were going to raise objections but the company wants this matter to proceed to get certified so we don't.

PN13

THE SENIOR DEPUTY PRESIDENT: I was going to ask a question about that. How long is this matter going to take?

PN14

MR TURNER: My submissions will take 90 minutes at the most. That includes the evidence from our side. I am not sure what the intervener will take.

PN15

MS PARKER: Your Honour, it might be appropriate to mention at this point that the union will be seeking to oppose the certification of the Agreement.

PN16

THE SENIOR DEPUTY PRESIDENT: I saw that in a letter, yes.

PN17

MS PARKER: On a number of different bases. I imagine that it is going to take quite a long time in terms of requiring the Commission's time to hear submissions on those various separate issues. The union will also seek to call a number of witnesses to support those submissions and the propositions it wishes to make.

PN18

THE SENIOR DEPUTY PRESIDENT: Can we just go off the record for a minute please?

OFF THE RECORD [3.38pm]

RESUMES [3.39pm]

PN19

THE SENIOR DEPUTY PRESIDENT: I have discussed the procedures for dealing with the matter with the parties in conference. I have determined that we will hear Mr Turner out today. The matter will then be adjourned until my return at which time Ms Parker will be able to put her submissions.

PN20

MR TURNER: Thank you. Your Honour, I will commence by calling Dean Sparshott as a witness.

<DEAN SPARSHOTT, SWORN [3.40pm]

<EXAMINATION-IN-CHIEF BY MR TURNER

PN21

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Sparshott. Yes, Mr Turner.

PN22

MR TURNER: Mr Sparshott, could you re-state you full name and work address please?---Yes. Dean Sparshott and my work address is 848 Boundary Road, Richmond.

PN23

And are you are an employee of Energy Developments Limited?---I am. I am the Senior Human Resources Manager for the company.

PN24

And did you sign the stat dec which was lodged in support for certification of this Agreement?---I did.

PN25

Your Honour, I ask that the witness be shown these certificates of incorporation to the company.

PN26

Are those the certificates of registration of a company of Energy Developments Ltd and the second one EDL Group Operations Pty Ltd?---Yes they are.

PN27

I tender those, your Honour.

PN28

THE SENIOR DEPUTY PRESIDENT: Yes, they will be marked as a bundle, T1.

MFI #T1 CERTIFICATES OF REGISTRATION OF ENERGY DEVELOPMENTS LTD AND EDL GROUP OPERATIONS PTY LTD

PN29

MR TURNER: Thank you. I have another document I would like the witness shown, please.

**** DEAN SPARSHOTT XN MR TURNER

PN30

Mr Sparshott, did EDL negotiate an LJ Agreement with the AWU last year?---Yes, the company did negotiate an LJ Agreement in 2001.

PN31

And does the page you have just been given set out the increases to wages and allowances which were to be paid under that agreement?---That's correct. They were the increases should the agreement have been certified.

PN32

I tender that as well, your Honour.

PN33

THE SENIOR DEPUTY PRESIDENT: T2.

MFI #T2 PAGE SETTING OUT INCREASES TO WAGES AND ALLOWANCES UNDER LJ AGREEMENT

PN34

MR TURNER: Now, Mr Sparshott, do you have a copy of that document with you? You don't. I can hand you another copy?---Yes, thank you.

PN35

If you look to the bottom of that page under clause 17.1. Next to the six per cent, 1 July 2001 it says, "already paid". Do you see that at the bottom of the page?---Yes, I do.

PN36

When was that Agreement signed on behalf of the company?---It was signed on behalf of the company on 14 December 2001.

PN37

And why was the six per cent paid from 1 July 2001?---My understanding is the six per cent was paid as a good faith gesture on behalf of the company to ensure that the Agreement did proceed through to certification.

**** DEAN SPARSHOTT XN MR TURNER

PN38

And was that six per cent stopped at some stage? The payment of it stopped?---It was. It was stopped on 10 January of this year.

PN39

Why was that?---The reason it was stopped is that at that time there was a hearing to hear certification of the 2001 Agreement and the union - the AWU - at that time reneged on signing the Agreement. Therefore, the company determined that as there would be no Agreement there was no basis on which to continue the six per cent increase and a decision was taken to withdraw it effective from that date.

PN40

Now clause 17 of the LK provides for six per cent from 1 July 2001, is that correct?---That is correct.

PN41

As a result of the "yes" vote to the LK has the six per cent been reinstated from 11 January this year?---Yes, that was the arrangement we made. That should the "yes" vote be received, which it was, we would reinstate that six per cent from 11 January and those back pays are being calculated as we speak and due to be paid from today.

PN42

And as a result has that six per cent been in place since 1 July last year?---That's correct. The effect will be that when you combine the previous payment which was from 1 July to 10 January and add to that the reinstated back-pay from 11 January that entire six per cent would have been in place from 1 July 2001.

PN43

And have you prepared figures setting out how much extra people have been paid since July last year as a result of having that six per cent?---Yes, I have.

PN44

I'd like to show you another document, please. Are those the figures you have prepared?---They are.

PN45

I seek to tender this document, your Honour.

**** DEAN SPARSHOTT XN MR TURNER

PN46

THE SENIOR DEPUTY PRESIDENT: That will be T3.

MFI #T3 DOCUMENT SETTING OUT EXTRA PAYMENT AS A RESULT OF SIX PER CENT SINCE JULY 2001

PN47

MR TURNER: Just to summarise one of the paragraphs. See up on the top left hand side the table says, operators annual and a total down the bottom and an average of $3031.92. Does that total show that operators on average have received $3031.92 extra because of the 6 per cent paid back to July last year?---Yes, on average across the operator classification, that is the quantum of increase between the previous rates and the new rate with the 6 per cent included.

PN48

The same procedure follows to the other tables, does it, utility persons salary, next one to the right, an average of $2740.55?---It does.

PN49

Admin assistance, an average of $1949.44 and then the two columns as they go down have some hourly paid people in it with an average of 99 cents for utility persons hourly paid, admin assistants part time hourly, 90 cents. Are they the extra payments per hour that the people have received because of that 6 per cent?---That's correct.

PN50

Have you been involved in the LK negotiations?---I have.

PN51

Have those negotiations been based on the LJ document which the company negotiated?---Yes, in fact they have. The LJ document which was the previous negotiated certified agreement which didn't get certified contained the result of the significant negotiations between the company and the union and employee representatives. So what we wanted to do was ensure that we recognised that substantial work and we took that document as a basis for commencing the negotiations under the LK process.

**** DEAN SPARSHOTT XN MR TURNER

PN52

Has EDL decided what to do about the 3 per cent due from 1 July 2002 that's provided for in the LK agreement?---Yes, we have. Should we get certified today or subsequently when we reconvene, we will process the 3 per cent which will be effective from 1 July this year as soon as practically possible in the next available pay. The intention is to make that happen as soon as possible.

PN53

Thank you. Your Honour, I have no further questions.

PN54

THE SENIOR DEPUTY PRESIDENT: Have you got any cross-examination, Ms Parker?

PN55

MS PARKER: Your Honour, would I be able to reserve the right to cross-examine the witness at a later time?

PN56

THE SENIOR DEPUTY PRESIDENT: Yes, I think that's a reasonable request in the circumstances. Mr Sparshott, could you be here on the next occasion that the matter is listed for some cross-examination if there is any?---I could be, yes.

PN57

Thank you, Mr Sparshott. You may step down.

<THE WITNESS WITHDREW [3.49pm]

PN58

THE SENIOR DEPUTY PRESIDENT: Yes, Mr Turner?

PN59

MR TURNER: I call, Kim Timmins as a witness.

<KIM TIMMINS, SWORN [3.50pm]

<EXAMINATION-IN-CHIEF BY MR TURNER

PN60

MR TURNER: Could you restate your full name and work address for the record please?---Yes, Kim Timmins. My work address is 848 Boundary Road, Richlands, Queensland.

PN61

You are employed by Energy Developments Limited?---Yes.

PN62

Are you a human resources adviser with that company?---Yes.

PN63

Have you prepared material assessing the benefits of the LK agreement over the EDL award?---Yes.

PN64

Have you examined how many hours per week operators do under the award conditions?---Yes.

PN65

Can you tell us how you've worked out how many hours per week operators do under the award please?---Their normal hours is 38 hours and then they are paid a flexible work allowance and what I've done, I've broken that down into an average of what that is per week. Their flexible work allowance compensates for working one in four weekends which is 7.6 hours - - -

PN66

Could I just ask you, are you referring to notes about this?---Yes.

PN67

You prepared those notes yourself?---Yes, I have.

PN68

Can you remember the detail without looking at those notes?---Yes.

PN69

You can?---I am hoping.

**** KIM TIMMINS XN MR TURNER

PN70

Could you tell us please then how you calculated?---The flexible work allowance compensates for working one in four weekends which is calculated by 7.6 hours times two for Saturdays and Sundays which is 15.2 hours per week for the weekend. Then times that by 13 cycles which is the cycles within the year which equates to 197.6 hours annually. Divide that by 52 for the 52 weeks in the year. That gives you 3.8 hours per week. The flexible work allowance also compensates for working 4.5 public holidays per annum and to calculate what that is per week is 7.6 hours per week times that by 4.5 public holidays which is 34.2 hours. Divide that by the 52 weeks again. It comes to .66 hours. The flexible - - -

PN71

Yes, can I just interrupt you there. At the start of that you said you started with 7.6 hours per week, should that be per day?---Yes.

PN72

Thank you, and that results in an extra .66 hours per week?---Yes, for working public holidays. Another element within a flexible work allowance is three hours overtime per week. So just adding the working one in four weekends, the public holidays and the overtime, averaged over the week, you add those together with the normal allowance for 38 hours. It works out to be 45.46 hours per week. That's excluding hours worked for call outs and stand by.

PN73

Have you done a similar calculation for a utility person under the award?---Yes, I have.

PN74

What do those figures come to be?---45.46 hours again. The only thing is with those is they don't actually have any access to - they don't, they are not required to do call outs or stand by. So the 45.46 hours is correct.

PN75

What about administrative assistants under the award?---Under the aware they are required to work 38 hours. Under the CA they are required to work 40 hours.

PN76

Have you compared the EDL award conditions and conditions under the LK?---Yes, I have.

**** KIM TIMMINS XN MR TURNER

PN77

Have you prepared a sheet of LK conditions that you can't cost the benefit?---Yes, I have.

PN78

Would you have a look at this documents please. That gives the quantifiable benefits under the certified agreement. They are the ones you can cost?---Yes.

PN79

I seek to tender that, your Honour.

PN80

THE SENIOR DEPUTY PRESIDENT: Exhibit T4.

EXHIBIT #T4 LK CONDITIONS

PN81

MR TURNER: I will hand up the document of unquantifiable benefits to the witness, your Honour. Does that document set out those benefits which you can't put a dollar value to, they are unquantifiable?---Yes.

PN82

Thank you, I tender that, your Honour.

PN83

THE SENIOR DEPUTY PRESIDENT: T5.

EXHIBIT #T5 DOCUMENT OF UNQUANTIFIABLE BENEFITS

PN84

MR TURNER: Did you then prepare a summary setting out the costings that you had made of the benefits that you can cost from T4?---Yes, I have.

PN85

I hand that now to your Honour and to the witness. Is that the summary of the calculations you have done?---Yes.

**** KIM TIMMINS XN MR TURNER

PN86

I tender that, your Honour.

EXHIBIT #T6 SUMMARY OF CALCULATIONS BY MS K. TIMMINS

PN87

MR TURNER: I'm just trying to find a copy for my learned friend. I'll have to provide a copy. I just done have a fourth copy of that one unfortunately at the moment.

PN88

Looking at T6, the last document, could you explain your conclusions there? For instance, looking at the senior operator - - -

PN89

THE SENIOR DEPUTY PRESIDENT: Mr Turner, I think if you're going to take the witness through this document it would be useful if a copy could be made for Ms Parker. I'm prepared to adjourn for a couple of minutes while that is done.

SHORT ADJOURNMENT [3.58pm]

RESUMES [4.00pm]

PN90

MR TURNER: Thank you, your Honour, my learned friend has a copy of that.

PN91

Witness, looking at T6, if we take the left hand column, the first classification is senior operator, is that correct?

PN92

THE SENIOR DEPUTY PRESIDENT: Just a moment, Mr Turner, I seem to have given away my copy. Now, we're right.

**** KIM TIMMINS XN MR TURNER

PN93

MR TURNER: I was just taking the witness to senior operator at the top of the left hand column. Following across to the extreme right hand side of the page there are columns there operators salary and it's got 10 on, four off roster, salary per cent above the award, the first figure there is what?---37 per cent.

PN94

What are you saying by that figure? Are you saying that's the LK agreement conditions?---What I'm saying there is that taking into account all the quantifiable benefits which I think was T4 that the quantifiable benefits are in excess - the LK agreement is in excess of the award by 37 per cent.

PN95

Thank you. The next column is eight on, six off roster?---Yes.

PN96

Is that what is referred to in the award in the LK as the NETR roster, nominal equal time roster?---Yes, nominal.

PN97

And the benefit there is 89 per cent above the award conditions, is it?---Yes.

PN98

Going down to the bottom of that block of the column we have utility man, under the 10/4 rosters, 8 per cent above award conditions?---Yes.

PN99

And if it's under the eight on/six off roster it's 54 per cent above?---Yes.

PN100

Then the admin assistants if I could summarise, they range from 19 per cent down to 16 or 15 per cent?---Yes, that's right.

PN101

And utility person, salary paid 28 per cent?---Yes.

PN102

Utility persons hourly paid, at the bottom, 27 per cent?---Yes.

**** KIM TIMMINS XN MR TURNER

PN103

Thank you. I have no further questions, your Honour.

PN104

THE SENIOR DEPUTY PRESIDENT: What's your application in relation to Ms Timmins, Ms Parker?

PN105

MS PARKER: Again if we could reserve our position with respect to that.

CROSS-EXAMINATION BY MS PARKER [4.02pm]

PN106

MS PARKER: The only thing that I wish to clarify, and I think it might be self evident, but on exhibits T4 and T5 there's a reference there to list of unquantifiable benefits and quantifiable benefits under the CA, whether that is by comparison to whether they're provided in the award or not?---They're things above the award.

PN107

That are not included in the award?---Yes.

PN108

So the award doesn't include things in it which are different to what's in this table or it's completely - the things that are referred to in the CA are completely absent from the award?---They're things above and beyond the award conditions.

PN109

THE SENIOR DEPUTY PRESIDENT: But some of them would be in the award, wouldn't they? RDOs are in the award, aren't they?---Yes, but what I've - - -

PN110

But not 12 of them?---What I've actually put in there as a benefit is that the RDOs are paid at a different level to what the award is, so I've put, for example, the RDOs under the award are paid at 7.6 hours. For operators and utility salary under the CA they're paid at 10 hours, so I've put in my calculations the differences.

**** KIM TIMMINS XN MR TURNER

PN111

That's with respect to the quantifiable benefits?---Yes.

PN112

Or in relation to both tables?---Yes, I have put them in the quantifiable.

PN113

And in relation to the unquantifiable benefits is this described as the difference between what's in the award and in the certified agreement if there is something in the award that relates to those entitlements?---On the unquantifiable benefits sheet it's things that are above the award; for example, the use of a company vehicle. It's not in the award. It's a benefit of the certified agreement.

PN114

Right, but where there is some provision in the award for these entitlements have you listed in this table the enhanced benefit under the certified agreement or just what's in the certified agreement?---The enhanced benefit.

PN115

THE SENIOR DEPUTY PRESIDENT: Ms Timmins, again I'm going to have to ask you to come back on the next occasion. There may be some further cross-examination but subject to that you may step down.

THE WITNESS WITHDREW [4.04pm]

PN116

THE SENIOR DEPUTY PRESIDENT: Mr Turner?

PN117

MR TURNER: Your Honour, you've heard evidence it has been decided by EDL that once the agreement is certified the 3 per cent due under the LK from 1 July 2002 will be back paid to 1 July. Also under the LJ agreement which we had until the AWU reneged on 10 January this year a 6 per cent increase was paid from 1 July in advance of certification. It continued to be paid until 10 January when the AWU formally reneged in proceedings here. As a result of the yes vote in the LK ballot EDL has reinstated that 6 per cent from 11 January. So it will now be paid continuously from 1 July last year right up and throughout this

**** KIM TIMMINS XN MR TURNER

agreement and I refer to the evidence of Mr Sparshott on that and the last paragraph of his stat dec page 12. So, in effect I say the employees get a 12 per cent increase over the first 12 months of the operation of this agreement. They've got 3 per cent now.

PN118

They're going to get the 3 per cent 1 July '02 retrospectively as soon as it's certified if it's certified and then 12 months later being July 2003 they'll get another 3 per cent. So that's 6 per cent operative from last year; 3 per cent from July 2002 and another 3 per cent from next July; 12 per cent within 12 months. The application before you is under 170LK. The certification of the agreement negotiated directly with our employees. The application states it is made under division 2 of part 6B, therefore section 170LM(2) is complied with. The application is supported by a stat dec of Dean Sparshott. The original has been filed today, your Honour, and the original stat decs which were completed by CA reps have also been filed today. I refer to rule 49(1)B which says:

PN119

That if the agreement is negotiated by an employee acting on their own behalf and on behalf of other employees it must be signed by that employee.

PN120

Clause 37 of the current certified agreement operating with EDL - that's the 1998 agreement - and clause 7 of this LK agreement provide for a certified agreement committee. The LK has been negotiated with the 10 members of that committee and as a result the last page of the agreement provides spaces for signatures by the various CA reps. Now, what happened here is that because of timing separate pages have been put on the back of the agreement which have been signed by the CA reps.

PN121

Seven of those CA reps have signed. Three have not. Eight of the CA reps have made statutory declarations including one employee who hasn't signed the agreement. So I say in effect you can take that person to have signed the agreement anyway; that's Steve Champion. So I ask your Honour to deem that to be sufficient compliance with rule 49 and that further compliance be dispensed with under rule 6. Also 49(2) requires - - -

PN122

THE SENIOR DEPUTY PRESIDENT: You will file the other pages when they become available though, Mr Turner, won't you?

**** KIM TIMMINS XN MR TURNER

PN123

MR TURNER: The other pages, the original?

PN124

THE SENIOR DEPUTY PRESIDENT: You indicated to me that some people have filed their stat decs but not signed the document or the signature page is not on the document.

PN125

MR TURNER: Yes, there's one person more who's signed a stat dec than has signed the agreement. I don't think that person has signed the agreement but I'm saying he has signed a stat dec in support.

PN126

THE SENIOR DEPUTY PRESIDENT: Yes, but I would prefer he sign the agreement or that a signature page from him was obtained.

PN127

MR TURNER: I don't think that person has signed the agreement. He's signed a stat dec in support of the agreement.

PN128

THE SENIOR DEPUTY PRESIDENT: But you could obtain that page and file it, could you not?

PN129

MR TURNER: If he would sign it.

PN130

THE SENIOR DEPUTY PRESIDENT: Yes.

PN131

MR TURNER: I think he's saying he's not signing the agreement. Yes, that is correct, your Honour. I say seven have signed, three have not, eight statutory declarations have been put in, two people have refused to supply statutory declarations, so I week dispensation under rule 49 in relation to both requiring signature by all CA reps and the requirement to have statutory declarations from all CA reps. In support of that I say you see from paragraph 5.1 of the statutory declaration of Dean Sparshott that 84.9 per cent of the employees to be covered by this agreement have voted in favour of it, and I say there is every good ground to grant dispensation.

**** KIM TIMMINS XN MR TURNER

PN132

The copies of the statutory declarations of the CA reps have been filed with the application. I formally seek to tender those and t hey are of Andrew Brooks, John Bolgarelli, Paul Barnes, Kevin Handcock, Marlene Bull, Russell Mayer and Danout Rigonis and she has supplied a letter which she wanted to put in as well as her statutory declaration which has been provided to the Commission, and Stephen Champion. The originals of those were handed to your Honour's associate.

PN133

THE SENIOR DEPUTY PRESIDENT: Yes, I've got them here.

PN134

MR TURNER: Your Honour, the application states it's made under division 2 of part 6B and as I said before therefore 170LM(1) is complied with. The vote was counted on 30 August 2002. Dean Sparshott at paragraph 5.2 of his statutory declaration declares that. I submit that 30 August is the earliest date the agreement can be considered to have been made. The application for certification was lodged on 5 July which is within 21 days of when the agreement was made and therefore section 170LM(2)(b) has been complied with.

PN135

The agreement is in writing as required by section 170LI(1). EDL Group Operations Pty Limited is the employer and I refer to Sparshott paragraph 3.1. I have tendered the Certificate of Incorporation of that company. It is a constitutional corporation and I say section 170LI(1)(a) has been complied with. The agreement is about matters relating to the employment relationship as required by 170LI(1) and Dean Sparshott at 3.5 declares that. The agreement covers a single enterprise set out in Sparshott 2.1 and 2.4. Your Honour, if I could just refer to that in shorthand it would simplify things. I will just refer to Sparshott when I'm referring to the statutory declaration.

PN136

I ask your Honour to note that in 2.1 and 2.4 of Mr Sparshott's statutory declaration he refers to the part of the business or single business to be covered by the agreement. Down under 2.4 he says:

PN137

Power generation other than waste or energy.

**** KIM TIMMINS XN MR TURNER

PN138

Clause 3.2 of the agreement does not contain that exclusion of waste other than waste or energy but I say it's clear from the evidence that the agreement was negotiated to cover EDLs operations other than waste or energy and I ask that the certification order, if it be made, make that clear that this covers EDLs operations other than waste or energy. The waste or energy business is covered by its own certified agreement, Sparshott 2.4.

PN139

The agreement is with all employees in that part of the business described. Section 170LI(1)(b) has been complied with. The agreement is in respect of distinct operational and organisation units, Sparshott 2.4, so therefore 170LB(3)(b) has been complied with. EDL took steps to ensure that employees to be under the agreement had at least 14 days written notice of Edls intention to make the agreement, Sparshott 5.6. Also if your Honour would look at appendix 1 to Mr Sparshott's statutory declaration, we see written notice on that page. Sparshott 5.6 says that that notice was handed to each employee between 17 and 26 July this year.

PN140

Sparshott 5.1, the ballot was conducted between 15 and 30 August. I say the agreement was not made until a vote between those dates. Therefore employees had from 17 or 26 July, depending on when the documents were handed to them, until 30 August, that's at least 35 days notice of the intention to make the agreement, and I say that complies with 170LK(2). EDL ensured that all employees to be covered had a written copy of the agreement at least 14 days before the agreement was made. Sparshott 5.7 says a copy was handed to each employee between 17 and 26 July, and therefore LK(3) has been complied with.

PN141

The agreement was not made within 14 days of the notice of intention, therefore LK(2) has been complied with. Also from appendix 1 to Mr Sparshott's statutory declaration it can be seen that the notice of intention stated that:

PN142

If any person whose employment will be subject to the agreement is a a member of an organisation of employees ...(reads)... conferring with the employer about the agreement.

**** KIM TIMMINS XN MR TURNER

PN143

That notice complies with LK(4). Sparshott 5.9 he says he has checked all company records and no request was made to meet and confer by any employee or organisation, therefore there has been no breach of LK(5). Before the agreement was made EDL explained the terms of the agreement to employees to be covered by it. Sparshott 5.10 sets out the details, so that complies with LK(7). The explanation was appropriate having regard to people's particular circumstances and needs as described by Sparshott in 5.11, so that complies with LT(7).

PN144

Employees were given a reasonable opportunity to decide whether they wanted to make the agreement, Sparshott 5.1. As I say, they had notice of intention and explanatory material by 26 July. Consideration period ran from 29 July to 14 August, the ballot was open from 15 to 30 August, that's 35 days, and that meets 170LEC. Section 170LE, 170LK(1) and LT(6) states the requirements for a valid majority. Sparshott paragraph 5.1 states that the majority obtained was 84.9. In the documents that were filed there is a declaration of results by the Australian Electoral Commission which that figure can be gained from.

PN145

Your Honour, the declaration of results in the documents filed, the total ballot papers admitted to scrutiny 106, the third item from the bottom, yes, acceptance of the Energy Developments Limited and employees of the company certified agreement 2002, 90 people. Now, 90 as a percentage of 106 is 84.9 per cent majority in favour of the agreement. As to no disadvantage I refer to Sparshott 6.1. He says the EDL AWU Hydrocarbons Gas & Energy Award 2001 regularise the terms and conditions of employees doing this work and is binding on EDL. Submit it is the relevant award within section 170S.

PN146

Your Honour, in clause 3.3 of the award company means Energy Developments Limited and its subsidiary companies, so it includes EDL Group Operations Pty Limited, so I say that that is the relevant award for testing this agreement. Mr Sparshott at 6.2 says:

PN147

Certification would not result on balance in reduction in overall terms in reducing the employment of the employees covered.

**** KIM TIMMINS XN MR TURNER

PN148

That is as required by section 170LT(2). Then he identifies reductions in 6.3. He says:

PN149

CA clause 13.6 provides for time off and reimbursement of the costs of obtaining licences other than a driver's licence.

PN150

I say that is a negligible reduction in conditions to just exempt the cost of a driver's licence. I think they're now issues for 6 or 10 years so once every 6 or 10 years that cost would be defrayed to very little per week. Hours of work CA clause 20:

PN151

The average hours for full time operators is 50 per week, utility person salary option 50 per week, utility person and admin assistants are 40 per week.

PN152

Then as Mrs Timmins gave evidence the award says 38 but the flexible work allowance is paid to them to work three hours overtime per week, one in four weekends, 4.5 public holidays and I submit that the calculations are correct that, as a result, those people under the award would be required to work 45.46 hours per week excluding call outs and standby where applicable.

PN153

I ask your Honour also to take full note that the 6 per cent has been paid in advance for a year plus 3 per cent to be retrospective from 1 July plus 3 per cent from 1 July next year, therefore, the 12 per cent within 12 months of certification.

PN154

I wish to re-tender an exhibit which was tendered to the Commission on 26 April 1995 in the approval proceedings for the EDL AWUFIME Amalgamated Union (Hydro Carbons, Gas & Energy) Enterprise Flexibility Agreement. That was exhibit F4 in those proceedings. I wish to re-tender it here please.

**** KIM TIMMINS XN MR TURNER

PN155

THE SENIOR DEPUTY PRESIDENT: It will be exhibit T6 in these proceedings.

EXHIBIT #T6 EDL AWUFIME AMALGAMATED UNION (HYDRO CARBONS, GAS & ENERGY) ENTERPRISE FLEXIBILITY AGREEMENT

PN156

MR TURNER: In those proceedings the AWU was a joint applicant with EDL in seeking to have that agreement approved. This document was tendered in those proceedings. There was no objection from the AWU. I say it should be taken to have consented to the content of this exhibit. I refer only to pages 2 and 3 for the purpose of this hearing. They set out the links between the classification levels in the award, in the certified agreement of 1993 and in the EFA of 1995. The structure shown in those pages is the same as in the current agreement, that is 10 levels of operator, 10 levels of utility person and 10 levels of admin assistants. What I want to use the document for is to do a comparison of some wage rates.

PN157

Under clause 11.1.3 of the current award that is including the May 2002 safety net the rate for a utility person is $2631 per month including the flexible work allowance. Multiplying by 12 that comes to $31,572 per annum. Now, F4 ties that with certified agreement operator 1 or 2 so I'm taking the lower of those two classifications to examine the comparisons. The LK at page 28 sets out the applicable rate for operator level 1. At the top of the column on the left hand side the rate as at 1 July '01 which includes the 6 per cent doesn't include the further 3 per cent which they'll be getting retrospectively is 42,031.17. So that's over 10,000 more than the award rate and that's without the 3 per cent which will be paid retrospectively to July this year.

**** KIM TIMMINS XN MR TURNER

PN158

Also the agreement contains career progression for utility persons through 10 levels; the award has one. Taking another example from 11.1.3 of the award is senior operator who's entitled to $4048 per month which multiplied by 12 is $48,576 per annum. F4 aligns up with operator 9 or 10 and again I'll use 9 which is the lower of the two rates which from page 28 of the LK is $62,531 per annum. That's $14,000 more than the award provides and that again is without the 3 per cent from July this year.

PN159

The award operator B is $3892, for 12 months is $46,704. From F4 the agreement classification should be operator 5 or 6. Operator 5 is $52,298 which is $5500 more than the award without the 3 per cent. If you go to operator 6 that is $54,842 which is $8000 more than the award. These are all significant differences, they're not paltry little sums. We're going from 10,000, 14,000, 5500, 8000. If comparisons are done all the way through the range you'll see that there are significant increases for everyone.

PN160

The next item in the stat dec of Mr Sparshott is 6.3 and that's Rostered Days Off. Under the certified agreement clause 31.6 admin assistants don't get the RDOs. Under the award all full time employees get RDOs. I've looked at the award total weekly rate for admin assistant level 1 which is $453.10, that's clause 11.1.4. Under the LK agreement page 31 they get $1100 a fortnight or $550 per week. That is $97 more per week. Award level 10 is $627.48. Agreement level 10 is 1563.99 per fortnight or 782 per week which is $154 per week more so the lack of an RDO for the administrative assistant I would say is more than compensated for by the much higher wage rates.

PN161

The next item in the stat dec is Accident Pay. Under CA clause 34.3 accident pay ceases if employment is terminated before the end of the relevant circumstances. Under the award clause 18 accident pay does not cease if employment is terminated but what we've got under the CA clause 33 Salary Continuance Insurance which isn't in the award. This is where the company pays the premium to ensure employees against loss of income should they be injured and all that's been calculated in the figurers that should have been put before your Honour is the benefit of that increased insurance payment not the weekly payment they get out of that insurance policy were they to be covered by it so, in effect, it's an under estimate of the benefits contained under the LK agreement.

**** KIM TIMMINS XN MR TURNER

PN162

The next item is Sick Leave and I say that this has been incorrectly included as a reduction and I say that for these reasons. The award clause 19.3 says an employee can take up to 10 days off per annum. Under the certificate agreement clause 25:

PN163

An operator and a utility person salaried get 20 days per annum.

PN164

That's double:

PN165

Operator NETR -

PN166

which is normal equal time roster:

PN167

- gets 16 days per annum of their roster

PN168

which is the equivalent of 20 days per annum. Under the CA the admin assistant gets 20 days per annum so all those three double the award entitlement. Then utility persons on hourly get 10 days per annum which is the same as the award entitlement, therefore it's double or the same as the award provision. As to annual leave clause 21.4 of the award says:

PN169

If a public holiday falls while the employee is on annual leave one day is added.

PN170

Now, recalling recent proceedings this is double dipping. These employees are paid the flexible working allowance for working on these public holidays but yet the award gives them an extra day if they happen to have it during their annual leave and I say that's one matter we might have to look at in the variation proceedings because that is double dipping under the award. That still doesn't matter because that doesn't outweigh the conditions under the LK agreement.

**** KIM TIMMINS XN MR TURNER

Under the CA clause 24.6.3 for operators an extra day is not added but for all the other classifications an extra day is added, 24.7.1, a day's added for utility person's salary. 24.0.3, a day's added for utility hourly paid. 24.9.3, a day's added for admin assistants.

PN171

So there's no significant reduction there. Next item is annual close down. CA clause 23 says if there's an annual close down employees are required to take leave. The award doesn't provide this. There's no reduction in the amount of the leave, just when it has to be taken and if they don't have it accrued, some may have to take leave without pay. So again an insignificant matter in determining where there's an overall reduction. Mixed functions, award clause 14 provides that if an employee performs higher duties for a minimum of four hours a day, they be paid the higher rate.

PN172

The CA has no provision, but it does pay figures of $10,000 and $14,000 per annum in excess of what the award pays. So that's more than offset. The CA has much higher wage rates and a greatly extended classification structure as is made clear by T6. Statutory declaration 6.4 identifies provisions which result in there being no overall reduction. CA clause 3.2 provides a much greater area and incidence than the award in 4.2. That increases the job opportunities under regulated conditions, regulated by conditions approved by this Commission. CA7 provides the CA committee to consider matters arising under the agreement and matters involving changes to the organisation of performance of work.

PN173

There's no such opportunity under the award and that's a valuable thing for employees to have. They can be involved in discussions about the organisation of work. Under CA clause 8.1 settlement of disputes, the parties have consented ahead of time for the extended jurisdiction of the Commission under section 111AA. That's not available under the award unless the parties consent at the time and, of course, it's quite often the case the parties don't get consent at the time of the dispute. So that's a valuable attribute of the LK. CA9 provides for new categories of employees which provides greater opportunities for employment, like operator NETR, utility personally paid, utility person adult apprentice and utility person regular apprentice.

**** KIM TIMMINS XN MR TURNER

PN174

These are classifications which didn't exist before the LK for which there was no employment opportunity. Now there are those positions to be created or being created as part of this agreement where there are employment opportunities and they're in addition to the much more extensive classification structure already in the '98 certified agreement which is the basis of the LK agreement. CA clause 9.3.3 provides the option for six months for a utility person's salary at option to return to hourly paid, for instance should they find they've been or think they've been disadvantaged and then the clause goes on that the rate of pay will be adjusted for that person should they so decide to revert.

PN175

CA clause 10 includes safety regulations and they're set out in the CA to make everyone more safety conscious, something of great importance in the work place. CA clause 11 probationary period, this gives an extra period for poor performers to improve their performance and stay employed with the company. CA clause 12, termination of employment: under the award employees employed prior to 27 September 2002 get one month's notice, post September 27, under the award and the LK they get the same period of notice. But the award has redundancy the same as the TCR provisions as between nil and eight weeks, the CA has much higher provisions of between three and 12 weeks.

PN176

Also the CA 12.3.2 provides flexibility for employees leaving the company to give less notice. Under the award, clause 17.2, they must give the same notice as the company is required to give. CA 13 is employee classification definitions. There are expanded career paths under the certified agreement. There's been a commitment of the company or it's committed in the LK that the classification structure or admin assistants is to be reviewed during the life of the agreement. Also the commencement level for employees with the relevant trade qualification has been made more flexible and they can commence at a rate higher than the base rate at which they were required to commence under previous agreements.

**** KIM TIMMINS XN MR TURNER

PN177

Now, as to wage rates, I've made some comparisons and I say they show huge benefits above the award and I don't wish to make any further comment about the comparison of wages at the moment. Allowances, clause CA 15.8, the CA has allowances not even included in the award. For instance, the gas filled installation allowance, the isolate allowance and expense and work related allowance are provided for to have CPI adjustments during the life of the agreement. Also all operators under the LK are to get the five percent trade allowance, whether or not they're trade qualified. The meal allowance under the certified agreement is to be paid under more flexible circumstances.

PN178

It's true the CA doesn't have the flexible work allowance in it, but the flexible work allowance was just a component of the over award payments which made up the total rate in the award which are $10,000 and $14,000 less than the - or $5000 or $8000 whichever figure you pick, less than the relevant certified agreement rate. Now, fortnightly pay is 16.2. Instead of paying on the previous period we were paying on Wednesdays of the period which brings the money to be available one day before payment on the Thursdays previously in situation or in line. Wages and allowances adjustments. The CA has six percent from July last year, that's over one year before the agreement operates. The employer hasn't been able to get the benefits of the operation of the agreement.

PN179

It's not operative as yet but we've been paying this money. Three percent retrospectively from 1 July 2002, three percent from next July, 12 percent within the first 12 months. Superannuation, the CA clause 18 provides greater choice of funds. Also the CA provides for nine percent contribution by the company of annualised salaries. The award provides for the contribution based on ordinary time earnings which are lower than annualised salaries. The hours of work, under the award, is 45.46, under the CA is 50. As well under the CA clause 20 there's to be a minimum break between shifts of ten hours and a maximum shift of 16 hours. Those provisions are not included in the award.

**** KIM TIMMINS XN MR TURNER

PN180

RDOs clause 21 in the CA, admin assistants don't get them, so pay rate is compensated, compensate for that. The CA provides 12 RDOs per annum. The award provides a fluctuating entitlement based on point four hours per eight hour day. So there's certainty under the CA, not under the award. Also under the CA, RDOs accrue on public holidays, annual leave, sick leave and even on RDOs themselves. This is not so under the award. Under the CA, employees are paid for an RDO on the basis of a ten or eight hour day, under the award it's for 7.6 hours. Under the CA clause 21, and this was at the request of employees, the company can pay out rostered days off where the accruals are excessive.

PN181

Public holidays, CA22, utility persons and admin assistants are entitled to take public holidays under the CA, they are not so under the award, days are added to annual leave. When they take them under the CA they're paid for eight to ten hours per day, under the award 7.6 hours. Annual leave under the CA is paid for eight to ten hours per day, under the award 7.6 hours. Annual leave loading under the CA for operators utility the salary is calculated on 200 hours per annum, that's a 50 hour week. For admin assistants utility hourly, that's 160 hours per annum, a 40 hour week, under the award they're all paid on the basis of 152 hours per annum.

PN182

Sick leave under the certified agreement, 20 days off, under the award ten days off. That's a rough generalisation. There was another lower figure than that, but most of them get 20 days off under the certified agreement, the award is ten. Under the certified agreement, for a day's sick leave they're paid eight to ten hours per day, depending on what classification of employee, the award 7.6 hours. Bereavement leave certified agreement 27.2. There is provision for additional travelling time to be allowed to the employee where significant travel has to be undertaken.

PN183

Under the certified agreement they are paid for 8 to 10 hours on any such day, under the award for 7.6 hours per day. Parental leave: the certified agreement wording includes same sex relationships which is a wider provision than the award.

**** KIM TIMMINS XN MR TURNER

PN184

Under the CO the performance and development provisions, clause 32, enhance skills and career opportunities for employees. I've made mention of clause CO33 which is salaried continuance insurance. There's no such benefit under the award. Tools and safety clothing - CA35. The company provides that, those things to the employees. Under the award you have to buy them and the company then reimburses so there's an outlay and possible wait of a short time for reimbursement.

PN185

Company vehicles are not provided under the award. Under A36.3 they're provided when employees are on call and on leave. Employee reps, CA38: they're to have time to perform the role and the reasonable use of communications equipment. There is no such provision in the award. Redundancy: I rely on previous comments on that. The benefits are higher under the certified agreement.

PN186

So we say looking at all the material the agreement passes the no disadvantage test but even if it does not it would not be contrary to the public interest to certify, therefore under section 170LT3 it should be taken to a pass. And I say it should be taken to a pass because a 3 per cent increase that has been paid since 1 July, sorry, that's a 6 per cent increase has been paid since 1 July last year. Negotiations for the LJ commenced early in 2001, the LK as we've heard from Mr Sparshott is based on those LJ negotiations. Therefore employees have had since early 2001 to consider whether they want this agreement and 84.9 per cent say they do.

PN187

Then 8 out of 10 CR reps are putting stat decs supporting certification. 7 out of 10 have signed the agreement, and what the employer sees coming from this agreement is stability. It believes the agreement will provide stability in the workplace which will be disruption if yet again an agreement which some majority want is taken away from them.

**** KIM TIMMINS XN MR TURNER

PN188

Now some other formal requirements, a disputes settlement clause, Sparshott 6.6 refers to clause 8 and that satisfies section 170LT8. CA clause 8 provide conciliation and arbitration in accordance with 170LW. The agreement provides a nominal expiry date of 30 June 2004 which complies with 170LT10. The termination of employment provisions are not inconsistent with provisions in the Act except that they exceed the provisions of the Act, therefore they meet section 170LU2.

PN189

So from the material there's been no contraventions of section 17LU3. There are no provisions which discriminate against employees for the reasons in 170LU5 or 6, or for any other reason. I submit therefore that the agreement must be certified in accordance with 170LT1. Those are the submissions for the company, your Honour.

PN190

THE SENIOR DEPUTY PRESIDENT: All that remains is for us to fix a date then, Ms Parker. How does Friday, 18 October look?

PN191

MS PARKER: Your Honour, that's suitable. I don't have my diary with me I'm afraid as I've got a computerised diary but as far as I'm aware that date is sufficient.

PN192

THE SENIOR DEPUTY PRESIDENT: We'll fix Friday, 18 October. If it doesn't suit could you let my associate know by close of business tomorrow?

PN193

MS PARKER: Yes, your Honour.

PN194

THE SENIOR DEPUTY PRESIDENT: And we'll hold in reserve then Monday, the 21st.

PN195

MS PARKER: Yes, your Honour.

**** KIM TIMMINS XN MR TURNER

PN196

THE SENIOR DEPUTY PRESIDENT: But I'd prefer to do it on the 18th if possible.

PN197

MS PARKER: Your Honour, could I make just a couple of points. The first one is that I'm instructed by my client and my client's members that there was word about rosters changing as early as in the next couple of weeks. Now, I'm unsure whether that was on the basis of an expectation by the company that this agreement would be certified today or not but I seek clarification about that because if that is still intending to take place then we would seek an order that there be status quo maintained until this application can be fully heard.

PN198

THE SENIOR DEPUTY PRESIDENT: I'm not sure what jurisdiction I've got to do that. I can certainly say that if they're purporting to change the rosters under the new agreement they can't because it's not certified but if there's power in the existing agreements to do it then I don't see how I can stop that, can I?

PN199

MS PARKER: If there's power, your Honour. I don't now, I haven't looked at the existing agreement to see whether that exists or not but it was just a concern that was raised by the employees.

PN200

THE SENIOR DEPUTY PRESIDENT: What I will say is if it's purported to be done under the new agreement it can't be done because the agreement is not certified.

PN201

MS PARKER: Yes, your Honour. The other matter I wanted to raise, I just wanted to flag this just based on the limited instructions I've received today, I've identified there may be potential breaches of Part 10A of the Act as well as potential breaches of section 170NC. That being the case I just want to flag that so that there would be, depending on my further consideration of this matter it may be that I advise my client about its rights to bring the matter before the Federal Court.

**** KIM TIMMINS XN MR TURNER

PN202

THE SENIOR DEPUTY PRESIDENT: That's a matter for you, Ms Parker. Thank you for the information.

PN203

Well, the matter will be adjourned subject to what I've just said to 10.30am on Friday, 18 October in Sydney.

PN204

MS PARKER: Sorry, your Honour, I just want to mention one last thing. Is it possible, I don't have a copy of the actual application that was filed or the stat decs and I just wondered if it was possible - my friend is providing me with a copy.

PN205

THE SENIOR DEPUTY PRESIDENT: We'll adjourn on that basis.

ADJOURNED UNTIL FRIDAY, 18 OCTOBER, 2002 [4.47pm]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

DEAN SPARSHOTT, SWORN PN21
EXAMINATION-IN-CHIEF BY MR TURNER PN21
MFI #T1 CERTIFICATES OF REGISTRATION OF ENERGY DEVELOPMENTS LTD AND EDL GROUP OPERATIONS PTY LTD PN29
MFI #T2 PAGE SETTING OUT INCREASES TO WAGES AND ALLOWANCES UNDER LJ AGREEMENT PN34
MFI #T3 DOCUMENT SETTING OUT EXTRA PAYMENT AS A RESULT OF SIX PER CENT SINCE JULY 2001 PN47
WITNESS WITHDREW PN58
KIM TIMMINS, SWORN PN60
EXAMINATION-IN-CHIEF BY MR TURNER PN60
EXHIBIT #T4 LK CONDITIONS PN81
EXHIBIT #T5 DOCUMENT OF UNQUANTIFIABLE BENEFITS PN84
EXHIBIT #T6 SUMMARY OF CALCULATIONS BY MS K. TIMMINS PN87
EXHIBIT #T6 EDL AWUFIME AMALGAMATED UNION (HYDRO CARBONS, GAS & ENERGY) ENTERPRISE FLEXIBILITY AGREEMENT PN156