C0101/698, Transcript of Proceedings [2002] AIRCTrans 3957 (3 October 2002)

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TRANSCRIPT OF PROCEEDINGS

O/N WT05420

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT O'CALLAGHAN

C No 01016 of 1998

HEALTH AND DISABILITY SERVICES -
SUPPORT WORKERS - WESTERN AUSTRALIAN
GOVERNMENT - AWARD 2001

Application under Item 51, Part 2
Schedule 5, Workplace Relations and
Other Legislation Act 1996 re
award simplification

PERTH

12.35 PM, FRIDAY, 20 SEPTEMBER 2002

Continued from 21.2.01

PN106

MR G. TYRRELL: Sir, I appear on behalf of the ALHMWU.

PN107

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Tyrrell.

PN108

MR C. GLEESON: I am appearing on behalf of the employer respondents to the Award.

PN109

THE SENIOR DEPUTY PRESIDENT: Thank you Mr Gleeson. As this matter has been brought on fundamentally at my behest, it is probably appropriate that I explain what I see as the background to the matter and how I would propose that we proceed today. The issue relates to a review of this award pursuant to the Workplace Relations and Other Legislation Amendment Act 1996 and it fundamentally relates to - or largely relates to issues of wages and classifications.

PN110

The Workplace Relations and Other Legislation Amendment Act is sometimes regarded with varying degrees of popularity by the parties but the reality is that the Commission has a legislative obligation to review awards pursuant to that Act. The review of this award was by and large completed by former Commissioner Laing. Commissioner Laing, however, did not actually issue an order to give effect to this review. Following Commissioner Laing's retirement, I issued an order which simplified the award but left aside, at the behest of the parties, the issue of wages and classifications.

PN111

That issue in the context of the requirement for properly fixed minimum rates of pay has been the subject of disagreement and deferral for some years. A brief look back through the file shows that some five or more years ago the parties were making promises to the Commission that the wages issue would be quickly finalised. Throughout 2001 I held numerous conferences to try and agree on an approach to this issue. Fundamental impediments to that approach related to the inability of the parties to arrive at an agreed position over what constituted the key classification for the purpose of a comparison with the metal trades rate of pay.

PN112

Late in 2001, I listed this matter for arbitration in this very hearing room. I cancelled that arbitration at the last minute as I was advised by the parties that an agreed position had been reached. That agreement was, to my knowledge, however, never consummated. On the 12 August this year I issued a decision which established the approach that I intended to follow in this matter unless the parties sought to persuade me to the contrary. On 30 August the ALHMWU advised me of its intention to argue for an alternative position and I need to note, Mr Tyrrell, in this matter that I appreciate that you probably only recently gained carriage of this award for the union but you are inheriting an award that has been the subject of many debates on the part of your predecessors.

PN113

Also, on 30 August the employers advised that should the union propose an alternative position, they should be given the opportunity to consider the arguments to be put. I have noted that since those dates there have been various exchanges of correspondence between the parties to this matter, some of which have been made available as copies to me. I should also note that yesterday I had a telephone conversation with Mr Tyrrell and indeed last week I had one with Mr Gleeson, if my memory serves me correctly.

PN114

MR GLEESON: Yes sir.

PN115

THE SENIOR DEPUTY PRESIDENT: Thank you. I propose this afternoon to hear from the union, firstly, and subject to the information provided to me, I will determine the next steps in the matter. As I advised Mr Tyrrell yesterday, I think it is important that I distinguish this matter from the earlier proceedings in this award and indeed in many other awards where the issues of wages and classifications have been left for later determination. The distinguishing feature in this award is that decision of August 2002 where I laid out the approach that I propose to follow.

PN116

I adopted that position because of the absence of any coherent or cogent advice from the parties which outlined an alternative position that I could follow and indeed in the months before I handed down that decision I would have to say that I was quite unable to talk to anyone within the ALHMWU at all in relation to this particular issue. So that, having already laid out an approach and effectively indicated very clearly to the parties what I propose to do, any possible agreement between the parties to either defer the matter or indeed to arrive at an alternative position, is going to need to be demonstrated to me to be both a sustainable option and indeed a more appropriate one than the approach I have outlined in my decision.

PN117

So this is not simply an exercise in the parties saying, we may well reach agreement in this matter. The parties will need to demonstrate to me that I ought to put aside the logic which was inherent in the decision of August 2002. Now in that August 2002 decision I also addressed the issue of personal leave. The parties had earlier submitted to me that there was an unintended consequence arising out of the simplification of the award in relation to the personal leave provisions. The employers have proposed a revised personal leave clause.

PN118

At the conclusion of our consideration of the wages and classifications issue, I propose that we come back to this personal leave issue to determine an appropriate position in relation to that particular matter. So I hope that assists the parties in terms of my perception of the issue that needs to be determined today and, on that basis, Mr Tyrrell, I invite you to outline the union's position to me.

PN119

MR TYRRELL: Sir, the ALHMWU does seek to have the matter of the minimum rates adjustment for the Health and Disability Services Support Workers West Australian Government Award 2001 dealt with at a time in the future to allow for the parties to continue to conciliate a consent position on the matter.

PN120

THE SENIOR DEPUTY PRESIDENT: Mr Tyrrell, you need to speak up again for me, I am sorry.

PN121

MR TYRRELL: Sorry.

PN122

THE SENIOR DEPUTY PRESIDENT: It must be my age but I am having very great difficulty hearing you.

PN123

MR TYRRELL: Sorry, I am very softly spoken as well, sir.

PN124

THE SENIOR DEPUTY PRESIDENT: You can yell at me.

PN125

MR TYRRELL: Sir, the parties currently have a willingness to achieve a consent position on this matter. However, further work is required to ensure that this process is comprehensive and adheres to the principles in the paid rates review decision. Sir, I do have submissions in regards to the reasons for this but I would like to request, if the Commission agrees, to discuss this further in a conference forum if that is at all possible.

PN126

THE SENIOR DEPUTY PRESIDENT: Well, I am not adverse to going into a conference proceeding but I think you had better outline to me now what it is you are proposing to me before we consider a conference.

PN127

MR TYRRELL: Yes sir.

PN128

THE SENIOR DEPUTY PRESIDENT: See I don't want to be negative about a conference but I have spent many, many hours in conferences on this issue and they have not taken me very far so far. So you will need to have in mind the fact that I have - I have put the effort in to developing a decision and a position in relation to the wages question and you will need to demonstrate to me now that the logic that you are proposing is more appropriate in this case or indeed is capable of being agreed with by the employers as potentially more appropriate.

PN129

It may be that after we have done that, then we will go into a conference but at this stage I am not about to simply set my earlier position aside and go back into a range of conferences unless I can have some confidence that that approach is worth while.

PN130

MR TYRRELL: Certainly sir. I will continue with - - -

PN131

THE SENIOR DEPUTY PRESIDENT: And once again I reiterate, I do have some sympathy for the fact that you are picking up an award which has a very long history so don't take my criticisms of the earlier conference proceedings as a personal criticism.

PN132

MR TYRRELL: Understood sir. Sir, I take into account the frustration of the Commission at the protracted history of dealing with the wages and classifications in this award. The parties have previously proposed a similar position to that which I am proposing today in not being successful in converting this position into a definitive wages and classifications schedule. It is unfortunate but nevertheless a significant factor that staffing changes with both parties have resulted in the process being handed over and delayed. This disjointed approach has restricted the ability of the union particularly to undertake the processing in an efficient and timely way.

PN133

Current circumstances, however, allow for an intensive approach to the process in a time frame that would be acceptable to the parties and to the Commission. Specifically sir that the people who have carriage of the award at this point in time I believe can successfully do what hasn't happened previously and haven't had the chance to attempt that to this point. Sir, the ALHMWU feels that to arbitrate on the issue of wages and classifications at this point would result in some significant components of the principles, the history of the award and other relevant factors are not being fully considered in the process.

PN134

This may, consequently, undermine the validity of that process. The relative skill, responsibility and conditions under which the work is normally performed in the classifications in this award can, I believe, be further reviewed and until this process is undertaken comprehensively, the classification structure would not necessarily indicate correctly the key classification or the appropriate relativities. The specific nature of hospital work makes it impractical to arbitrarily determine these relativities.

PN135

For example, a hospital cleaner Level 1 in the classification - in the current classification structure at Royal Perth Hospital would need to consider not only day to day procedures of cleaning but additionally the presence of dangerous bacteria such as V ..... Resistant E.Coli or VRE which they currently have an outbreak of and that same hospital cleaner at Level 1 classification structure of this award would also need to consider the toxicity of the cleaning agents required to combat such a bacteria.

PN136

This is an example of one of the nuances of the award and I guess what I am putting forward is the need for - the need and the ability of the parties to review such things as that and come up with a comprehensive wages schedule. Another example would be the sterilisation assistants found at Level 4 of the classification structure who require a skill and responsibility not properly explored in the context of the minimum rates adjustment principles. These staff are increasingly being required to possess qualifications equivalent to classifications in other relevant awards which are readily recognised in those other simplified awards as trade rate.

PN137

The consequences of this added responsibility include potential litigation for those staff involved in the process. This classification is currently at Level 4 of the classification structure in this award and fall six levels below the key classification of a Level 10 proposed in the draft order of the 12 August by yourself. Sir, in saying that I am not proposing that the key classification necessarily would fall at Level 4 but I am simply trying to demonstrate that a review by the parties involved would possibly clarify those sort of inconsistencies at the moment. Sir, the ALHMWU would suggest that any arbitration on the matter would require extensive hearing, including many witnesses and possibly the need for inspections by the Commissioner of the various departments in the various hospitals.

PN138

What the parties are suggesting as a more favourable solution is the programming of further meetings between the parties. These meetings would in every likelihood result in the completion of this process without the intervention of the Australian Industrial Relations Commission or unnecessary use of its resources. The parties fully expect to have a wages and classification structure which meets the principles of the minimum rates adjustment process. Sir, the parties I think could agree to regular meetings over a reasonable time frame and come up with that classification table by 6 December 2002, as it is my understanding that you would be working in the Perth office at the Australian Industrial Relations Commission at this time and if any further conciliation or arbitration is required that would facilitate that process.

PN139

In summing up, sir, I hope that the submission has outlined some of the significant factors in the parties' hesitation in arbitrating the issue at this point. The union specifically believes that it does require some more attention and that we could easily achieve that over a time frame that would be favourable to the Commission.

PN140

THE SENIOR DEPUTY PRESIDENT: Mr Tyrrell, we take you to the three sort of fundamental questions or issues that you have raised. Firstly the extent to which recent or emerging developments have changed the job function undertaken by personnel covered by this award. And can I have your views on whether or not you are effectively proposing then that the work that the parties would undertake would review the work value associated with the employees covered by this award.

PN141

MR TYRRELL: Sir, I - - -

PN142

THE SENIOR DEPUTY PRESIDENT: Because I do have to say, the opportunity does exist to complete a minimum rate adjustment in this award now and then at some later stage to complete a review of those classifications and their rates of pay, on the basis of changes in work value.

PN143

MR TYRRELL: Sir, yes, I understand that. I guess I'm not proposing that that would be the case but simply highlighting that issue as a reason why it will be necessary for the parties to review the classification structure in further detail. I am not going so far as to say what the outcome of that may be, but simply trying to indicate the need for it.

PN144

THE SENIOR DEPUTY PRESIDENT: Yes, I'm afraid I'm lost there, you will need to help me a little further. I am not trying to be difficult, but I'm not quite sure I understand what it is you are saying to me.

PN145

MR TYRRELL: Sir, I guess I am acknowledging that there may or may not be work value issues in the classification structure and they may be dealt with within this process or at a later date. I guess I am trying to propose an efficient process that would address or clarify those issues in a relatively quick time frame in that - - -

PN146

THE SENIOR DEPUTY PRESIDENT: Have you actually unveiled to the employers a definitive proposal?

PN147

MR TYRRELL: Sir, not a definitive proposal but I have had discussions with the employer about these issues that I am raising today. My understanding is the employer is open to us exploring that and hashing that out, I suppose, sir, in the discussions that I am proposing leading up to that December time frame.

PN148

THE SENIOR DEPUTY PRESIDENT: I see. Well then go to the second issue that you raised relevant to the key classification. The dilemma that I have there, upon which I invite your comment, is that if you choose anything other than the Level 10 as the key classification, and let's say for example that you choose a Level 4 and suggest to me that ought to be adopted as the key classification. Then were that to be adopted you are going to end up with a trades person/cook currently embedded in that list of classifications covered by the Level 10 with a rate of pay well in excess of 100 per cent of the key classification.

PN149

I need to indicate right at the outset that I have some difficulties with that approach in terms of the extent to which it could be considered consistent with the award simplification principles and in particular the principles addressing the review of rates for the purpose of the minimum rate adjustment.

PN150

MR TYRRELL: Sir, yes, I understand that. I think that that possibly indicates further a need to review the classification structure. It may be, and again I am not proposing anything at this point, sir, but it may be that that needs to be taken into consideration in context with what we find in regards to those issues that I have raised in my submissions today. I am confident, sir, that the parties, with the resources of the combined employer and employee and employee association, that is the union, could quite easily review issues like that and come back to the Commission with appropriate resolutions to those sorts of issues in the time frame that we are proposing.

PN151

THE SENIOR DEPUTY PRESIDENT: Yes, all right. Thank you, Mr Tyrrell.

PN152

MR TYRRELL: Thank you.

PN153

THE SENIOR DEPUTY PRESIDENT: Mr Gleeson.

PN154

MR GLEESON: Thank you, sir. I think if, at the outset, the employer will need to reiterate the comments it made in relation to its submissions dated 30 August in that, on the basis of information before the employer as at the date of the draft decision and order, that is our position that we certainly continue to concur with the decision and specifically as set out in paragraph 15 of the Commission's decision in print 921933. That we do, at this time, concur that hospital worker, Level 10, represents the most appropriate classification. From the employers my instructions are that we are aware that the union is proposing an alternative, or potentially proposing an alternative, and that my instructions certainly are not that the employer wishes to dismiss those any alternative submissions or proposals out of hand. And we are certainly prepared to provide any to work with the union to determine it.

PN155

Through the discussions that the employer has had with the union I must say that we have identified a number of issues. This is not having anything concrete or written to work with as far as any alternative sustainable, in line with the pay rates review decisions, etcetera, before us. We have made it pertinently clear that the integrity of those decisions certainly need to be justifiable to the Commission and that as recently as this morning we also raised views that discussed the matter that some of the issues may well be to do with where positions are actually classified within the existing structure. Not necessarily that the existing structure does not represent the trades, the key classification being at Level 10, which we would see that as being separate.

PN156

The point that we would also like to add is that if the Commission was satisfactorily comfortable that a sustainable option may well be achievable within, we would see that that potentially could be more efficient to defer the finalisation on the basis that it may need to go through as a special case before a Full Bench. Having said that, if the position was to be deferred we would seek that strict programming be issued and adhered to as a part of any deferral, to the extent that the outline or the alternative proposal must be provided to the employers to consider within a maximum of two weeks, in order that what we do not want to see occurring is that the parties go towards looking at an agreed structure whereas to achieve something which then, once again, the ball park is changed.

PN157

THE SENIOR DEPUTY PRESIDENT: Mr Gleeson, two questions for you. First of all can I ask you to comment on the potential difficulty that I alluded to with Mr Tyrrell. That is, were the parties to arrive at anything less than the Level 10 as a key classification, then there seems to me the very real possibility that the trades person/cook rate will be assessed at being in excess of 100 percent.

PN158

MR GLEESON: That is the fundamental concern which we have advised to the union as to why we need to have what is proposed before us before we can give any indication of government support or otherwise in regards to any alternative mechanism. Which then also goes back to our position in that making sure that it is not an issue of where positions fit within the classification structure, rather than the rationale and the relationship between the classifications within the structure and the trades person, the paid rates, probably fixed minimum rates tests which we would see that as being a different issue. Unfortunately, sir, is that discussions hadn't got to that stage on the basis of nothing before us to actually compare it against.

PN159

THE SENIOR DEPUTY PRESIDENT: Second question, or area of question then, Mr Gleeson. I have been previously advised that a series of agreements sit above this award. Can you confirm that to me?

PN160

MR GLEESON: There is a single multiple business agreement covering the WA Government Health Services that sits.

PN161

THE SENIOR DEPUTY PRESIDENT: Yes. Now just tell me then how that agreement relates, in terms of wages and classifications, with this particular award. Does it use the same classification structure?

PN162

MR GLEESON: It is based on the same. The only difference is that Level 1 and 2 have been compacted into one level and Level 3 and 4 has also been compacted into one level. Insofar as occupations listed within the classification structure in the award, they correspond with the relevant classifications in the enterprise agreement.

PN163

THE SENIOR DEPUTY PRESIDENT: Then to what extent would a change in the classification structure, and hence the relativities of wage rates for the particular award classifications, have the potential to impact on the operation of that multiple business agreement?

PN164

MR GLEESON: I haven't given that issue particular great thought in the context of the nominal operation time of the existing certified agreement. Through discussions that has been relayed to the union as a fundamental issue in regards to the flow on of amending the award rates and in future enterprise agreements because of the changes that that will result in the relativities. So to use as an example, is that on the current award rates, base award rate, employees may have achieved a 30 per cent increase in wages. For the future negotiations we are concerned that if the change of the base changes than what is proposed, is that the 30 per cent that should have been achieved through enterprise agreement is added to the new award rate, and then any future claims is added on top of that, that that concern has been relayed.

PN165

Once again, without a concrete proposal or something to consider, it is very difficult to give detailed responses to that. But that has been a concern that has been raised by the employers.

PN166

THE SENIOR DEPUTY PRESIDENT: Yes. All right. Thank you. Mr Tyrrell is there anything you want to say having heard Mr Gleeson on this matter?

PN167

MR TYRRELL: Sir, no. I don't know that there is anything further that I can add other than what I've put forward in my submissions.

PN168

THE SENIOR DEPUTY PRESIDENT: Very well. Thank you. Having heard the parties on this matter I must admit to a reasonably advanced degree of scepticism that the parties will in fact be able to come up with a solution which will meet the requirements of the Workplace Relations, and other legislation, Amendment Act and simultaneously meet the practical requirements associated with the work covered and the operation of the existing certified agreement. It may well be that my scepticism is simply borne of the number of hours that I have spent debating this issue with the parties over the last nearly two years.

PN169

I am prepared to give the parties some time to see whether they can come up with a solution. I am not prepared to give them until 6 December and I will explain why. I am prepared to give the parties until 24 October, when I would propose to list the matter again for a report back hearing. It won't be a conference it will be a hearing. It may be that coming out of that hearing we go into conference but if the parties advise me that they have a proposal agreed as at 24 October, then I would expect to receive that proposal on or about that date so that I could consider it.

PN170

If the parties come back to me on 24 October and advise that they've not been able to come up with an agreed position then I propose, as you so rightly were advised Mr Tyrrell, to consider the matter in that first week in December. That is the week commencing Monday, 2 December. And on 24 October I would set the matter down for hearing in that week commencing 2 December and I would issue directions then as to how it will be arbitrated. That is the time frame within which either party would have to put forward its contentions and its suggestions in terms of how I might be informed so as to be able to make a decision.

PN171

I am not prepared to allow the parties until early December to advise me of whether or not they are going to be able to reach a conclusion because otherwise there exists the possibility that when I'm over here during that week, the parties advise me then that they will need to sit down and talk about how we will go about arbitrating the matter at some other date further on into the future, and it has simply gone on too long now. Now the exact time of that video hearing on 24 October will be advised to the parties within the next few days. I won't set a precise time now because it depends on the availability of the video equipment.

PN172

I think it is appropriate that I say again that the process of reviewing awards so as to come up with minimum rate adjustment is something that has now occurred in some two-and-a-half thousand awards. And each one of those awards has its own sort of complexities and issues. It is a process that I think could be elevated to a position where the parties see it as a major impediment in certain circumstances where it ought not to be regarded in that light. In this case you do have a certified agreement that sits above the award. The award performs only the function of a safety net in that whatever we do to the award at this point in time is highly unlikely to have an immediate impact on employees.

PN173

Hence I must say I am a little at a loss as to why it is that the parties would want to devote huge resources to the issue of wages and classifications in this award, as distinct from putting those issues and those resources into dealing with the issue of wages and classifications in the future agreement arrangements. That however is the parties call, it is not mine. I am happy to hear debate on the issue if it is to be argued. The second significant reservation that I have is that I would urge the parties to look very closely at that agreement and ensure that changes that they might consider in relation to this particular award, do not have unintended consequences in terms of the way which your agreement operates.

PN174

That is I would hate to be doing something here now that created a rash of disputation that my good friend Deputy President McCarthy, failed to thank me for as numerous disputes could be brought back to him. And I think it appropriate that the parties very carefully consider the potential for something that would be considered in this award with every measure of integrity, having a possible impact on the way in which wages and classifications operate under the agreement. Now in the period between now and 24 October, I am available to try to assist the parties should you want to access my office in that regard.

PN175

I am very happy to convene more video conferences but I need to stress to you that on 24 October you will need to either have an agreed proposal or to come before me prepared to receive a set of instructions as to how we will go about arbitrating the issue. If you do have an agreed proposal, then it would be a mistake to think that it is certain to be accepted by me because you will need to demonstrate its integrity to me. Now Mr Tyrrell, does that give rise to any questions on your part?

PN176

MR TYRRELL: Sir, no. I think that the time frame that you've outlined is workable definitely for the parties. I fully expect it - - -

PN177

THE SENIOR DEPUTY PRESIDENT: I'm sorry. I've lost you again. I am trying desperately to read your lips.

PN178

MR TYRRELL: Sorry, yes. Sir, I don't think that the time frame that you're putting forward is unreasonable and I feel confident that the parties can come back to you with the first of those options, and that is to have an agreed proposal which would meet the principles of the minimum rates adjustment procedure.

PN179

THE SENIOR DEPUTY PRESIDENT: Very well. Mr Gleeson.

PN180

MR GLEESON: The only request that we would have, sir, would be that if the Commission would be prepared to do so would be for the employer to receive at least a proposal prior to the 24 October to get the consideration started, I suppose, from the union.

PN181

THE SENIOR DEPUTY PRESIDENT: Mr Gleeson, you might be misunderstanding me. I'm not actually prepared to issue such a request or direction because I'm putting the onus back with the parties. If the union simply gives you a proposal on 24 October, I'm expecting that the parties will come before me by way of video hearing on that day and say that they don't have agreement.

PN182

MR GLEESON: Yes, sir.

PN183

THE SENIOR DEPUTY PRESIDENT: In that case, we will proceed to arrange the hearing of the matter in that first week in December.

PN184

MR GLEESON: Yes, sir. Thank you.

PN185

THE SENIOR DEPUTY PRESIDENT: So that it stands to common sense that if the union is serious about proposing an alternative to that which I outlined in my decision, they will need to get their act together and talk to you very quickly.

PN186

MR GLEESON: Thank you.

PN187

THE SENIOR DEPUTY PRESIDENT: I don't think, on that basis, it is necessary that I issue directions as to how soon they give you a proposed alternative.

PN188

MR GLEESON: Yes. Thank you, sir.

PN189

THE SENIOR DEPUTY PRESIDENT: That takes me to the issue of personal leave. Who wants to go first on that question?

PN190

MR GLEESON: Sir, our position and our proposed clause was attached to our submissions of 30 August. As yet we have not had confirmation of whether or not that is agreed to.

PN191

THE SENIOR DEPUTY PRESIDENT: Thank you. Mr Tyrrell.

PN192

MR TYRRELL: Sir, I must apologise. I thought that I had clarified with the employer that we were supporting that submission on the personal leave.

PN193

THE SENIOR DEPUTY PRESIDENT: So you are in agreement with the employer proposal in this regard?

PN194

MR TYRRELL: Yes, sir.

PN195

THE SENIOR DEPUTY PRESIDENT: Thank you. Now, Mr Gleeson, it might be best if I address the question to you. The proposal for a revised clause 34 is predicated on a separation out of the bereavement leave arrangements.

PN196

MR GLEESON: That is correct, sir.

PN197

THE SENIOR DEPUTY PRESIDENT: It gives rise to a question in my mind as to the extent to which an employee, under the arrangement you are proposing to me, would be able to access personal leave entitlements for the purpose of bereavement leave. I need your assistance on that issue.

PN198

MR GLEESON: Sir, the position that I understand is that an employee is entitled to two days on each occasion of death of a person as specified in the clause. We would see that then any provision in addition to the two days on each occasion, would then meet the other requirements of the personal leave provisions. We wouldn't see that it would reduce that access. The issue relates to the way in which the administrative practises, namely payroll systems, cannot if the bereavement leave isn't an accruing entitlement - once they have accrued the hours specified without manual adjustment they can't take the 16, or the two days off as well. The provisions provided, and the amendments sought in this award, were the ones adopted through the simplified nurses, WAANF Registered Nurses Award.

PN199

But, sir, leading into the 24 October we would be more than happy to look at any consequential effect that the proposed clause may have. But as I say, I'm not aware that it does reduce any access to the personal leave provisions.

PN200

THE SENIOR DEPUTY PRESIDENT: All right. Well look, given your involvement in a substantial number of these award simplification exercises, you would probably be aware that the general approach that I follow is to say that in the absence of a clear and logical alternative to the Commission's test case standard, I will generally adopt that test case standard. I would have to say that I am a little nervous that the provision that is proposed here is different to the standard. If the parties come back to me as at 24 October and both confirm to me their agreement that, notwithstanding the standard provision, this particular provision is proposed to replace that which is currently in the award, I will make that variation.

PN201

Both parties will need to confirm to me that they acknowledge the differences between this proposal and that which is contained in the test case provision. Thank you. Mr Tyrrell, you're happy with that approach?

PN202

MR TYRRELL: Yes, Senior Deputy President, I am.

PN203

THE SENIOR DEPUTY PRESIDENT: All right. Very well. Look I will adjourn the matter on that basis and we will talk to the parties on 24 October, if not before hand.

ADJOURNED UNTIL THURSDAY, 24 OCTOBER 2002 [1.24pm]