AG2002/4330, Transcript of Proceedings [2002] AIRCTrans 3843 (27 September 2002)

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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER LARKIN

AG2002/4330

APPLICATION FOR CERTIFICATION
OF AGREEMENT

Application under section 170LK of the
Act by FBIS International Protective
Services Pty Limited for certification
of the FBIS International Protective
Services Certified Agreement 2002-2005

SYDNEY

12.17 PM, FRIDAY, 13 SEPTEMBER 2002

Reserved for decision

PN1

THE COMMISSIONER: Could I take appearances, please.

PN2

MR T. LAWRENCE: If the Commission pleases, I seek leave to appear on behalf of the applicant company, FBIS International Protective Services Pty Limited. With me is MR J. GARVEY, the national general manager of the company.

PN3

THE COMMISSIONER: Leave is granted. Mr Lawrence, there is a great deal of material on the file. I don't appear to have rosters, any sort of working rosters. Have I missed that somewhere? If it is there can you tell me where I can find it.

PN4

MR LAWRENCE: Commissioner, no, you don't. The rosters haven't been provided, but we have rosters made up which we intend to provide to the Commission today.

PN5

THE COMMISSIONER: Which you're going to tender today?

PN6

MR LAWRENCE: Yes.

PN7

THE COMMISSIONER: I note, and correct me if I'm wrong, the applicant, the employer, is a national security operation.

PN8

MR LAWRENCE: That's correct, yes, operating at the present in five states.

PN9

THE COMMISSIONER: What is being sought is that as part of this application it's also sought that the Commission determine a designated award for the state of Victoria and it would be the federal award, the Victorian Securities Award. I take it that that designation is being sought because the employer is not a party to that federal award. In relation to awards for the purpose of the no disadvantage, the employer has done an analysis to the award it would seek to be a designated award in Victoria, and also awards that it is bound by state legislation, but also by federal award coverage as a party in particular states.

PN10

MR LAWRENCE: Yes. All that is perfectly correct, Commissioner, yes.

PN11

THE COMMISSIONER: The material that has been filed also includes comparison documents in the states to the relevant award instrument for that state.

PN12

MR LAWRENCE: Yes, that's correct, Commissioner, and we have sought to undertake a reasonably thorough analysis of the advantages and disadvantages in respect of the agreement vis a vis each of those awards.

PN13

THE COMMISSIONER: Also the agreement had been amended and the documents on file, which I'm sure you're going to refer to in you submissions, has provided to me a subsequent notice of intent in accordance with 170LK(2) and (4) which is the content of that notice. Your submissions I presume will take me to that, that each time the agreement was amended the processes as required by 170LK(8) were complied with.

PN14

MR LAWRENCE: That's completely correct, Commissioner, yes.

PN15

THE COMMISSIONER: There are 115 employees?

PN16

MR LAWRENCE: That's correct, yes.

PN17

THE COMMISSIONER: Thirty of those employees are part time and 20 are casual?

PN18

MR LAWRENCE: Certainly 20 are casual and three are part time employees. That's at section 5.5 of the statutory declaration filed in the proceedings by Mr Garvey.

PN19

THE COMMISSIONER: What I plan to do today, Mr Lawrence, is I will hear your submissions, I will take tender of material and peruse that material that you plan to put before me this morning and then I will reserve decision. I will consider the material not only on file but your submissions to me this morning and also any material that you tender. A decision on both applications will hopefully issue very quickly, however don't necessarily hold me to that, but I will attempt to issue a decision very quickly on both applications.

PN20

MR LAWRENCE: We're content with that course, Commissioner. As I will take the Commission to, we filed a substantial amount of material to indicate firstly, I think the degree of consultation that's been undertaken by the company in this process, and secondly the nature of the analysis that's been conducted in relation to the respective advantages and disadvantages vis a vis the awards in terms of the agreement's operation.

PN21

THE COMMISSIONER: All right. Whenever you're ready, Mr Lawrence, I will hear your submissions. Thank you.

PN22

MR LAWRENCE: If the Commission pleases. The agreement before the Commission today is one made between FBIS International Protective Services Pty Limited and its employees engaged in the provision of security services. As the Commission will have already noted, the agreement is made pursuant to section 170LK of the Act. The title of the agreement is the FBIS International Protective Services Certified Agreement 2002-2005. The Commission should have on file - we have already discussed this briefly - the following documents.

PN23

1. An application pursuant to division 2 section 170LK of the Act signed by Mr Garvey in his capacity as the national general manager of the company.

PN24

2. A statutory declaration of Mr Garvey with attachments A to G. Attachment A has itself two attachments being attachments (1) and (2) being:

PN25

(1) The first information pack provided to employees in respect of the original proposed agreement;

PN26

(2) The second information pack in respect of the amended agreement.

PN27

Attachments B through to G deal with the respective awards that underpin the agreement.

PN28

3. An application pursuant to section 170XF seeking to have the Commission designate the Security Employees Victoria Award 1998 as appropriate for the purposes of the application of the no disadvantage test in respect of Victoria. That application is also signed by Mr Garvey and the application is necessary because there is no award that currently binds the company in respect of Victoria, as the Commission alluded to earlier.

PN29

4. An original copy of the proposed agreement signed by Mr Minicini, the CEO of the company.

PN30

The Commission will no doubt have noted that the agreement applies to part of the business of FBIS only. The reason for that is set out in the statutory declaration of Mr Garvey at section 2.4. That relates to the fact that the business of FBIS is the provision of security services. The structure of the FBIS workforce is that the overwhelming majority of the employees are security officers. There is a small number of management staff and a small number of administrative staff.

PN31

The work of security officers is indeed very different in nature to that undertaken by management staff and administrative staff and the terms and conditions of employment of the respective groups of employees are indeed very different. The terms and conditions of employment of security officers are very different to those of management and administrative staff and indeed they are governed by different instruments, particularly in respect of security officers to the extent that awards regulate the conditions of employment. That is the reason why the agreement applies to part of the business as opposed to the whole of the business.

PN32

THE COMMISSIONER: Could I just ask you a question. In regards to the classification structure applying in the company, for security officers, there are three levels?

PN33

MR LAWRENCE: That is correct, yes.

PN34

THE COMMISSIONER: In an award of comparison, do I presume those three agreement levels would equate to a grade one two or three in the relevant state awards and Federal awards?

PN35

MR LAWRENCE: I think the agreement also contains typical duties for the respective classifications, as does the respective awards. The appropriate match up in our view, although there is some overlap in duties of course between the two but generally the typical duties are very similar. Grades one to two in the awards, we say would generally correspond with the asset services officer classification in the agreement. Grades three to four would generally correspond with the senior asset services officer position and grade five would generally correspond with the supervisor position but there would be certainly some overlap in relation to grades four and five under the award, with the supervisor classification under the agreement.

PN36

THE COMMISSIONER: But in applying the no disadvantage test, that would have been given due regard in looking, if there was any disadvantage.

PN37

MR LAWRENCE: Yes, of course.

PN38

THE COMMISSIONER: Of course that test is an on balance test.

PN39

MR LAWRENCE: Yes.

PN40

THE COMMISSIONER: Thank you.

PN41

MR LAWRENCE: Commissioner, the agreement is to apply in all states and in the Northern Territory as the Commissioner stated earlier. However, the company is presently operating as I stated earlier only in New South Wales, Victoria, Queensland, South Australia and Western Australia. The agreement if certified will govern the conditions of employment of approximately 115 security employees.

PN42

Commissioner, the reasons for and the process that lead to the making of the agreement set out in statutory declaration of Mr Garvey and more particularly in attachment A to that statutory declaration. The Commission will see in reading that statutory declaration and the attachment, that there was an initial notice of intention to make an agreement dated 12 April 2002. That is referred to at page two of attachment A and following. That sets out the process of consultation that was undertaken by the company in relation to the original proposed agreement. That process involved the provision of comprehensive information about the proposed agreement to the relevant employees.

PN43

The presentations are individual work sites around the country. Question and answer sheets prepared in response to questions raised by employees, and I am also instructed, Commissioner, and this isn't covered in the statutory declaration that all employees who are to be covered by the agreement were given access to the company's email system in order that they could email Ms Mealings who was the human resources consultant brought in to oversee the consultation process and indeed to implement it, could email her with questions in relation to the agreement.

PN44

In addition, Ms Mealings was provided with a mobile phone by the company and employees were free to ring her with questions and queries at any time. There is clearly, as we say, Commissioner, there was an extensive process of information and consultation with the employees as detailed in attachment A of Mr Garvey's and there was also extensive consultation with the ALHMWU. The union notified the company that it indeed covered some employees employed in the business and as a result there were consultations between the company and the ALHMWU and as a result of those discussions and as a result of the consultation with the company's own employees, and indeed the handing down of the living wage decision around the time, the company determined to amend the agreement to amongst other things, Commissioner, address a number of issues that was raised by its employees in the ALHMWU and to incorporate the living wage increase into the asset service officer and senior asset services officer rates.

PN45

The rates in the agreement set for the supervisor classification were already substantially above the relevant award rate. Commissioner, given that the agreement required amendment, the section 170LK process was recommenced and all there required steps were again undertaken. A new notice of intention was issued, dated 5 July 2002. Commissioner, that appears in attachment two to attachment A of Mr Garvey's statutory declaration. Does the Commission have that?

PN46

THE COMMISSIONER: Yes, I do.

PN47

MR LAWRENCE: There were further - and the consultations that took place with employees and with the ALHMWU is again set out in the statutory declaration of Mr Garvey, Commissioner. In relation to the employees, there was again an extensive provision of information to the relevant employees. Question and answer sheets were provided regularly and there was email access and telephone access for employees who may wish to raise queries of Ms Mealings in respect of the operation of the agreement.

PN48

On this occasion there were no actual site visits given that the on site meetings had taken place in relation to the original agreement and the amendments did not result in a wholesale rewriting of the original proposed agreement. The material provided to employees in the second information pack, which is attachment two to attachment A of Mr Garvey's statutory declaration clearly set out and explained the amendments made to the original agreement and the operation of the agreement as amended.

PN49

Commissioner, the agreement was made by way of secret ballot. The ballot process is set out at pages five and at pages eight to ten of attachment A to Mr Garvey's statutory declaration. Commissioner, what doesn't appear in that documentation is a copy of the ballot paper and it is appropriate at this time to hand a copy of that up to the Commissioner.

PN50

THE COMMISSIONER: Mark that ballot paper exhibit A1, thank you.

EXHIBIT #A1 BALLOT PAPER

PN51

MR LAWRENCE: Commissioner, that ballot paper is set out in my submission a very clear manner. There were two choices, yes or no choices to whether a particular employee agreed or not to have the proposed agreement govern the terms and conditions of his or her employment. Commissioner, the counting of the ballot papers commenced on 9 August and I use the word, commenced, because there was a late count based on late arrival of some ballot papers on 12 August, which actually completed the process. The original count of the overwhelming majority of the ballot papers was conducted on 9 August and some ten ballot papers were then counted on 12 August given the late arrival.

PN52

135 ballot papers were sent out. The figure of 135, was arrived at because the company sent ballot papers to all employees that had appeared on their books in the previous 12 months. Some of those employees were, at that stage not working for the company but they may have been working on a casual basis and in the interest of extreme caution ballot papers were sent to all of those employees. 109 votes were received. One vote was invalid and the result of the ballot was 64 employees in favour of the agreement and 44 against.

PN53

Now, on the basis of those submissions, Commissioner, we say that the requirements of section 170LK and section 170LT have been strictly adhered to and indeed fully satisfied.

PN54

THE COMMISSIONER: The union had no further involvement, Mr Lawrence, at all?

PN55

MR LAWRENCE: Commissioner, the position is at set out in attachment A to Mr Garvey's statutory declaration. And that was that there was the extensive initial consultation with the union in relation to the first Agreement. Changes were made to the Agreement on the basis of that consultation and indeed, as I've submitted earlier, consultation with the relevant employees.

PN56

And, in relation to the amended Agreement, there was further consultation with the union in relation to that. And as set out in attachment A Mr Garvey had meetings with Ms Bellino of the federal office of the union and Ms Bellino advised him that the federal office had no difficulties or issues with the Agreement as amended.

PN57

THE COMMISSIONER: I'm sorry, what I meant was the union didn't seek to be bound by the Agreement.

PN58

MR LAWRENCE: That is correct, Commissioner, the union didn't. The union did not. Commissioner, we say that the requirements of section 170LK(1) and 170LT(6) have been satisfied. The Agreement has been made with a valid majority of persons employed at the time, and indeed made by a valid majority of those who caste a ballot. As is the requirement in section 170LE.

PN59

Section 170LK(2) has been satisfied in that the notice of intention was provided. That notice satisfied the requirements of section 170LK(4) and indeed the provision of 170LK(4) was included in effect in the second notice even though it wasn't technically required to be.

PN60

THE COMMISSIONER: The second notice of intent to make a?

PN61

MR LAWRENCE: Second notice of intent to make the Agreement, Commissioner, yes.

PN62

THE COMMISSIONER: I take the view that any notice in relation to an amendment of Agreement must contain the contents as outlined by 170LK(4). I take that view because while it may - I think in my view the legislator has outlined the employees need to be advised on when an Agreement is put to them - that they have that right. So, therefore, even though 170LK(8) does not say (4), (4) is simply to outline what the notice should contain as required by (2).

PN63

MR LAWRENCE: Yes and that is precisely the view that we have taken in this matter, Commissioner. Indeed, with due respect to the drafters of the legislation, when in effect amending the Agreement and repeating the process it didn't seem to me to make much sense not to comply with section 170LK(5) when that wasn't strictly necessary within the context of 170LK(8). But, nonetheless, section 170LK(5) still continued to apply. That is, the requirement to meet and give the union a reasonable opportunity to confer.

PN64

THE COMMISSIONER: Yes, but (5) only flows in a sense - well, yes, I see what you mean. On its face (5), you say, may not flow from (4) necessarily.

PN65

MR LAWRENCE: No.

PN66

THE COMMISSIONER: Subsection (5) can stand on its own in a sense.

PN67

MR LAWRENCE: Yes, but our view was that the two are logically interconnected. And if you are going to comply with (5) there is no reason why you wouldn't comply with (4) in repeating the process.

PN68

THE COMMISSIONER: Yes, I see what you mean.

PN69

MR LAWRENCE: And, Commissioner, you will see that there was a clear - indeed in excess of 14 days notice was given in relation to the notice dated 5 July 2002. The ballot as I said didn't take place until 9 August and was not completed until 12 August. We say section 170LK(5) has been satisfied. The company indeed met and conferred with the union on a number of occasions both in relation to the original agreement and in relation to the amended agreement.

PN70

In relation to section 170LK(7) we say the company took reasonable steps, indeed extensive steps to ensure that the terms of the agreement were explained to all relevant employees. And, as we have discussed previously, Commissioner, all steps were again taken in relation to the amended Agreement. As required by section 170LK(8).

PN71

Now, Commissioner, could I then move to the requirements of section 170AT attachments B to G, that Mr Garvey's statutory declaration set out. As I previously indicated in a reasonably exhaustive fashion the advantages and disadvantages of the Agreement vis-a-vis the applicable Awards.

PN72

The applicable Awards are those set out at section 6.1 of Mr Garvey's statutory declaration and as the Commissioner correctly identified those Awards are a mixture of State and Federal Awards to which the company is bound everywhere but in relation to Victoria. And the 170XF application was designed to have the Victorian Award designated, should the Commission so do, as the applicable Award for the application of the no disadvantage test. Commissioner, it is appropriate at this stage to hand up the roster information.

PN73

THE COMMISSIONER: Yes, we will mark that document exhibit A2, thank you.

EXHIBIT #A2 ROSTER INFORMATION

PN74

MR LAWRENCE: Thank you, Commissioner. Now, Commissioner, if I could take you to this document. It deals with the various Awards and the specific tabs - the rosters have been prepared on the basis of an average 8-hour day. And a weekly average hours of 38-hours. Each roster that applies to the specific State or Territory has been compiled on the basis of the appropriate base rate and the penalty rates applying for the various periods of work. That is the penalty rates applying for weekend work. Penalty rates applying for a public holiday, which has been factored in and the shift allowances.

PN75

THE COMMISSIONER: And these are outlined in the Agreement, Mr Lawrence? The penalty rates, the overtime - no, I'm sorry. You mean as the Award applies.

PN76

MR LAWRENCE: Yes, as the Award applies.

PN77

THE COMMISSIONER: Thank you.

PN78

MR LAWRENCE: You will see behind each tab Commissioner there is a roster prepared for each of the prospective Awards. The first one being Award New South Wales. Behind tab 1 is the Award Victoria and they have been prepared on the basis of an average weekly number of hours of 38. And in addition the base rate has been supplemented by the allowances that would apply in the appropriate circumstances, ie, for weekend work, for shift allowances and indeed for a public holiday.

PN79

THE COMMISSIONER: And this is representative of the types of shifts in those States, that employees work.

PN80

MR LAWRENCE: Yes. And what would happen under the Award in terms of payment. In a number of sites around the country the employees of the company work a four on/four off roster, Commissioner. And the rosters that have been prepared in relation to the EBA you will see behind each.

PN81

If you take New South Wales as an example the first two pages in New South Wales relate to the Award. You will there see, if you go to the summary at the bottom of that page, Commissioner. Does the Commission have that?

PN82

THE COMMISSIONER: Yes. The summary - it goes to week 8.

PN83

MR LAWRENCE: Yes. The summary there is 304, average weekly 38, rate of $598.85, average hourly rate $15.76, annual average $31,140.33. That is an extrapolation that has been undertaken in relation to the particular roster period.

PN84

Now Commissioner the roster for the EBA has been prepared on the basis of an average weekly hours of 42. So in some respects we are not actually comparing 38 and 38 so that is why we have provided - one can see from the average hourly figure Commissioner that that is certainly higher than the award even under 42 hours. The separate sheet that we have provided Commissioner, with the folder, does the commission have that?

PN85

THE COMMISSIONER: The separate sheet?

PN86

MR LAWRENCE: Yes, there is a separate sheet there.

PN87

THE COMMISSIONER: Yes sitting under a plastic cover entitled "FBIS International Protective Services" and it lists the States and what have you.

PN88

MR LAWRENCE: That is correct, Commissioner.

PN89

THE COMMISSIONER: Yes, I have that.

PN90

MR LAWRENCE: If the commission is seeking to line up the comparison on the basis of a 38 hour week this is the comparison that is there appropriate. That is on the basis of a 38 hour week under the award in New South Wales, the average hourly figure is $15.76. With an annual average figure of $31,140.33.

PN91

THE COMMISSIONER: Yes. We might mark this document Mr Lawrence for the simple fact that it is loose. It is not in the binder so we will mark it exhibit A3. Now we would call it an agreement analysis based on 38 hours per week to be read in comparison to the award rates of pay found in A2.

PN92

MR LAWRENCE: Yes, that is correct.

EXHIBIT #A3 AGREEMENT ANALYSIS BASED ON 38 HOURS PER WEEK

PN93

THE COMMISSIONER: The agreement Mr Lawrence provides for 42 hours to be worked prior to the payment of overtime?

PN94

MR LAWRENCE: No, Commissioner, no.

PN95

THE COMMISSIONER: Fine, I just asked the question, I am sure you will get to it.

PN96

MR LAWRENCE: Yes, no it does not.

PN97

THE COMMISSIONER: I do note the agreement states that it is a 38 hour week agreement.

PN98

MR LAWRENCE: Yes, but provision for longer hours to be worked by agreement at particular sites.

PN99

THE COMMISSIONER: Yes, and that is found at clause - clause 22 is the ordinary hours. It is at 22.4 12 hours.

PN100

MR LAWRENCE: Yes.

PN101

THE COMMISSIONER: It would still be a 38 hour week.

PN102

MR LAWRENCE: If there is a decision at a site to work the 12 hours Commissioner, it would actually be the standard practice of the company as I understand it in the industry is to work a 42 hour week. A four on, four off roster.

PN103

THE COMMISSIONER: Yes, so if by agreement there is a 12 hour roster, that is five days a week.

PN104

MR LAWRENCE: No, Commissioner as I understand it that is a four on four off arrangement. Four days on at 12 hours and four days off which averages out over the year at 42 hours per week.

PN105

THE COMMISSIONER: At ordinary time?

PN106

MR LAWRENCE: At ordinary time but you must look in terms of the agreement, the agreement rates comprise an all in rate and the agreement rate incorporates shift allowances and weekend work and so forth.

PN107

THE COMMISSIONER: This is what I wanted to ask, this is what I wanted to know.

PN108

MR LAWRENCE: So what has been built into the agreement rates as the commission will see is provision for - it is an annualised rate, an all in rate, so shift allowances for shift workers, or shift workers under the agreement. The agreement provides for shift workers Commissioner and for day workers. For shift workers there is an all in rate which includes and has factored into it shift allowances, payment for weekend work and public holidays. If you compare that particular rate you will see that it is significantly above the award rate.

PN109

As you see from our analysis of the advantages disadvantages Commissioner. If I could take you just by way of one example, in New South Wales, this is at page three, this is attachment B.

PN110

THE COMMISSIONER: Yes, I see to the application?

PN111

MR LAWRENCE: Yes. It is attachment B to Mr Garvey's statutory declaration.

PN112

THE COMMISSIONER: Yes, page 3.

PN113

MR LAWRENCE: Advantages/Disadvantages analysis in terms of the award in New South Wales. You will see there the all in rate for an asset services officer which is the base classification in the agreement working shift work on the basis of a 38 hour week is $637.79. The award rate for a security officer grade 1 is $492.50 and for a security officer grade 2 is $510.80. Now the agreement rate represents an increase of 29.4 per cent and 24.7 per cent respectively.

PN114

The agreement rate incorporates, as I said Commissioner, incorporates payment for shift allowances, weekend work and public holidays.

PN115

THE COMMISSIONER: And a certain amount of overtime too if we say 42 hours.

PN116

MR LAWRENCE: Well yes, effectively paid for an extra four hours at the all in rate, yes. On that issue Commissioner can I just, I do not want to take you to it but can I just give you one reference to a decision of Commissioner Laing which is Print S9721.

PN117

THE COMMISSIONER: Do you have a date on that print Mr Lawrence?

PN118

MR LAWRENCE: I do Commissioner, the decision was handed down on 23 August 2000. That makes reference to the fact that it is not comparing exact like with like but it makes reference to the fact that the commission has on occasions accepted an all in rate which is 10 per cent only above the award rate as being acceptable in terms of providing a salary increase significant enough to absorb payment for shift allowances, weekend work and public holidays.

PN119

THE COMMISSIONER: I think all agreements stand on their own and Mr Lawrence, it is quite right no agreement for want of a better word pass or fails on a rate of pay. It is an on balance test and in balancing that is not necessarily always monetary benefits. Quite often in security in my experience with agreements in that area is that it tends to come down to the money on quite a few occasions but that is not the test is what is there? If there is a reduction what is there in the agreement that balances that reduction.

PN120

That may be extra leave that that may be a bonus system that may be increased access to sick leave, it may be sponsorship of a childcare centre, these are just examples. So therefore, it is only a balancing and each agreement must be analysed itself. Can I ask you Mr Lawrence, what type of client does your client service throughout Australia? I would presume banks or - - -

PN121

MR LAWRENCE: Banks, largely, I think Mr Garvey might be able to help you.

PN122

THE COMMISSIONER: Mr Garvey is most definitely welcome to advise me of that.

PN123

MR GARVEY: We have a principal client is the Patrick Corporation where we provide security at wharf and berthing facilities. At their air services that is their air freight facilities and at their car facilities and that is their imported vehicles are stored in large warehouse type arrangements and we provide the security at those warehouses and the vehicles and look after the receipt, dispatch of those vehicles at those various warehouses.

PN124

Predominantly it is away from crowd control, it is away from interaction with the public. It is predominantly heavy industrial type - security at heavy industrial type sites. We do, on occasion, provide services to other clients on an ad hoc basis, but predominantly through the Patrick Corporation.

PN125

THE COMMISSIONER: And it is a 24 hour operation, Mr Garvey?

PN126

MR GARVEY: Yes.

PN127

THE COMMISSIONER: Yes, thank you for that. Yes, Mr Lawrence?

PN128

MR LAWRENCE: Commissioner, I fully appreciate what the Commission is saying about each agreement stands alone. I've made reference to the decision of Commissioner Laing only to provide the Commission with the guide to what may acceptable or not in terms of the monetary amount that is paid under the agreement.

PN129

THE COMMISSIONER: Yes, thank you for that, Mr Lawrence.

PN130

MR LAWRENCE: So, Commissioner, if you go back to the - if I can take the Commission back to exhibit A2 and A3, and can I make the point about exhibit A2, Commissioner? The roster, that has been prepared here, has been prepared on a reasonably generous basis, that is, it certainly has a public holiday falling within, and has been prepared on the basis of a spread of hours that covers both weekend work and, at times, going into penalty rates of a weekday.

PN131

Now, Commissioner, if you look at the average weekly earning, the average weekly 38 hour figure for New South Wales, for example, in exhibit A2. I'm talking here about the summary, Commissioner, that appears at the end of week 8. You will see that the average weekly works out to be a figure of $598.85, based on a 38 hour week, and that figure is calculated on the basis of the base rate and all of the penalties that would apply in relation to that roster period. So, that is for working on a public holiday, for working on weekends, and the shift allowances.

PN132

If you go to exhibit A3, Commissioner, you will see that for New South Wales, the all in hourly rate is $16.78, and that rate is contained in schedule B to the agreement, itself. That, for a 38 hour week - if an employee was working 38 hours under the agreement, that employee would receive $637.64 per week, with an annual average of $33,157, as opposed to $31,140.

PN133

Has the Commission got that documents?

PN134

THE COMMISSIONER: Yes, thank you.

PN135

MR LAWRENCE: If you take the next example, Commissioner, which is Victoria, you will see there if you go to the summary, and Victoria is behind tab 1 - if you go to the summary at the end you will see there that on the basis of a 38 hour week, under the award, under the particular roster that has been prepared here, incorporating as it does the penalties under the award, the average weekly figure for a 38 hour week is $559.03. Under the agreement, working a 38 hour week, the employee would be on an hourly rate of $16.78, and on an average weekly rate of $637.64, and on an annual average of 33,157, as opposed to 29,069. Those comparisons can be made, Commissioner, in relation to each of the States and the Northern Territory.

PN136

Does the Commission wish me to take you to the rest of them, or is the Commission happy to examine those in the Commission's own time?

PN137

THE COMMISSIONER: No, no. I will, as I said earlier, Mr Lawrence, have a look at all of those comparisons.

PN138

MR LAWRENCE: Yes. Can I then move to the other aspects of section LT, Commissioner? We say that the agreement clearly passes the no disadvantage test, and the Commission will, no doubt, form its own view about that when it looks at the comparisons that we have provided.

PN139

We say also that the requirements of section 170LT(7) have been satisfied. That is in relation to the provision of information to specified categories of employees, Commissioner. We rely on the fact that the process of consultation undertaken in relation to the original agreement and, indeed, the amended agreement was extensive as was the provision of information to employees about the agreement and its operation.

PN140

We also rely on the fact, as stated in Mr Garvey's statutory declaration, Commissioner, and I'm here referring to section 5.5, that employees of the company, in order to be employed, are effectively required to be proficient in English, and on that basis that seemed to be a need to provide anything over and above the ordinary in terms of the information provided to employees, and the consultation undertaken.

PN141

Commissioner, we say section 170LT(8) is satisfied. The agreement contains a dispute settling procedure. That is contained in the agreement at clause 30. We say section 170LT(9) has no application. There was no coercion on the part of the company in relation to this agreement. As a matter of fact, the opposite is the case, and we say that section 170LT(10) is satisfied. The Commission will see that the date of operation of the agreement is 3 years from the date of certification, and that is clause 6 of the agreement.

PN142

THE COMMISSIONER: And the agreement is to apply to the exclusion of all the awards that are either relevant or designated awards?

PN143

MR LAWRENCE: Yes, that's correct, Commissioner, yes.

PN144

THE COMMISSIONER: And I also note that the agreement provides for two 3 per cent increases over its life?

PN145

MR LAWRENCE: It does, Commissioner. 3 per cent on the first anniversary, and 3 per cent on the second anniversary of the agreement.

PN146

THE COMMISSIONER: Of certification?

PN147

MR LAWRENCE: Of certification. That's, of course, 14, yes. The Commission will also that the agreement itself, contains a number of schedules, and I am here referring to schedules (d) to (g), which contains specific State or Territory provisions, which have been included to ensure that the employees in those States and Territories are not disadvantaged.

PN148

Commissioner, in conclusion, might I say that we say that the statutory requirements for the certification of the agreement pursuant to section LT of the Act, have been both strictly adhered to and fully satisfied. Commissioner, there is one other matter. Can I take you to the agreement that's actually been filed which is the proposed certified agreement as amended. There seems to have been an oversight in relation to that. In relation to the schedules, Commissioner, you will see at page 2, the schedules go down to schedule F.

PN149

THE COMMISSIONER: I don't have to F, do I, I have to G

PN150

MR LAWRENCE: Yes, so what needs to in fact be inserted after schedule F is the word, schedule G.

PN151

THE COMMISSIONER: Do you have a replacement page for page 2?

PN152

MR LAWRENCE: I don't at this stage, Commissioner, but we can arrange to have that forwarded to the Commission.

PN153

THE COMMISSIONER: Because you see I don't, to me that's purely typographical. I don't take it that inserting a replacement page into page 2 to reflect schedule G in the arrangement to be an amendment which would be caught by 170LK(8).

PN154

MR LAWRENCE: No.

PN155

THE COMMISSIONER: So yes, if you could manage to get it all on to page 2 so it doesn't go over then I think it would be appropriate that you send me an original and the number of the required copies.

PN156

MR LAWRENCE: We shall do that, Commissioner. As a matter of fact in looking at the agreement again last night I have picked that up for the first time but we will arrange for replacement pages to be forwarded to the Commission, Commissioner. Unless there is anything else that I can assist the Commission with those are my submissions in support of the certification of the agreement, Commissioner.

PN157

THE COMMISSIONER: Thank you. As I stated earlier I'll reserve on both applications, the 170LX and the 170LK. Mr Lawrence, thank you for your submissions, they have been extremely helpful. I also must say that the amount of material and the submissions in support of the application is quite impressive. Of course it remains to be seen whether I determine that it's right but I must say I think it would be one of the most impressive applications I've had in handling the many 170LKs I have in the security area.

PN158

But because of the volume and the fact that it is nationally, and we have a number of awards that are to be considered, then I would rather consider that without issuing an ex tempore decision. As I said earlier, gentlemen, I'll reserve and a decision will issue at the soonest possible opportunity.

PN159

MR LAWRENCE: If the Commission pleases.

ADJOURNED INDEFINITELY [1.10pm]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #A1 BALLOT PAPER PN51
EXHIBIT #A2 ROSTER INFORMATION PN74
EXHIBIT #A3 AGREEMENT ANALYSIS BASED ON 38 HOURS PER WEEK PN93