AG2002/4973, Transcript of Proceedings [2002] AIRCTrans 4562 (15 November 2002)

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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

MUNRO J

AG2002/4973

APPLICATION FOR CERTIFICATION OF AGREEMENT

Application under Section 170LK of the Act
by Labourforce Services Pty Limited
for certification of the
Labourforce Services Enterprise Agreement

APPLICATION FOR DETERMINATION OF DESIGNATED
AWARD FOR CERTIFIED AGREEMENT

Application under section 170XF of the Act
by Labourforce Services Pty Limited for
determination of designated award for certified agreement

SYDNEY

10.18 AM, WEDNESDAY, 30 OCTOBER 2002

Adjourned sine die

PN1

HIS HONOUR: This matter is AG 4973 of 2002. It is an application under section 170LK of the Act lodged on 10 October 2002 by the applicant Labourforce Services Pty Limited seeking certification of an agreement to be known as the Labourforce Services Enterprise Agreement. Upon the matter coming before me it was headed that it was related to the metal industry. On examination it appeared that there was an assertion that the work - there were two employees at the time covered by the agreement and that the work or the employment subject to the agreement is award free. Upon examination of the proposed agreement I noticed that the preamble of the formal agreement stated:

PN2

That the agreement shall apply to employees that are engaged on a casual basis by Labourforce within any state or territory of Australia for the purpose of providing metering services.

PN3

From earlier in the preamble it appeared that metering services was intended to cover an area within contracts potentially by Fieldforce Services Pty Limited who hold contracts with water, electricity and gas retailers and networks and also other local government, state government and federal government facilities to provide water, gas and electricity metering services within any state or territory of Australia. Having regard to the breadth of potential application of the agreement to metering services throughout the Commonwealth of Australia and to the fact that the agreement is a 170LK agreement negotiated with, it would appear, two casual employees the assertion that the area of employment subject to coverage of the agreement which is to operate for a period of three years was on my knowledge and experience unlikely to be award free.

PN4

I had in mind particularly a decision of a Full Bench handed down on 3 September 2002 in print 922053 in which it was pretty obvious that employees engaged on meter reading services for Powercor within the State of Victoria Electricity Authority had been arguably covered by the Power and Energy Industry Electrical, Electronic and Engineering Employees Award 1998. While the existence of that award relating to permanent outdoor metering employees and employees engaged on meter reading duties on a full time permanent basis would not establish that employees to be subject to the proposed agreement are not award free they could well be award free because at least that one award would not necessarily apply to them unless they happened to be employed by a person who was a successor of an employer party to the industrial dispute that gave rise to that agreement.

PN5

It seemed pretty obvious that it would be unlikely to be the case that throughout the Commonwealth there would be no awards perhaps even a common rule award binding on meter reading employees who are engaged in gas, electricity or water reading. Against that background the lack of advertence to section 170XF and to the necessity for the Commission having an adequate basis upon which to assess any no disadvantage test seemed to me to be a consideration of some importance. That importance was increased by an awareness of the background of the matters dealt with in the decision to which I have referred which concerned automated meter reading services operating in the electricity industry in Victoria.

PN6

Finally in this context I noted that although there had been reference to the Fieldforce Services Enterprise Agreement recorded as agreement 814425 in print 915389 that agreement in itself could not be the basis of applying the no disadvantage test. It occurred to me even if it was the proposed agreement in this matter appeared to be designed to supply labour to the labour hire company that is the Fieldforce Services Enterprise Agreement (Single Business Employer) and to do so at a discount to the rates that are struck by the Fieldforce Services Enterprise Agreement if I read that agreement correctly.

PN7

In the circumstances it seemed to me appropriate to exercise the function that is left with the Commission under rule 49 to direct somewhat wider service than the two employees, casuals, who are the employee/respondent parties to this agreement at present. They are probably the only persons bound and because I was aware of the interest in the AMRS decision I directed that service be given to persons who are considered might be interested in any section, at least in the section 170XF aspect of the application, namely, the ASU, the AWU, the CPSU, the CEPU, the Department of Workplace Relations because the Minister seems to take an interest in some of the things we do in certification of agreements and AMRS which was the party to the proceeding in Victoria which took up no little amount of time arguing over jurisdictional questions that arose associated with the contracting out of meter reading services from various Victorian power institutions. In the circumstances with that preamble to explain why the matter has been dealt with in this way I will now seek appearances.

PN8

MR M. DIAMOND: Your Honour, I appear for the applicant. The applicant's managing director Mr K. CAHILL is with me.

PN9

MR L. BENFELL: I appear on behalf of the Communications, Electrical and Plumbing Union.

PN10

MR M. RIZZO: I appear on behalf of the ASU.

PN11

HIS HONOUR: In relation to the appearances for the ASU and CEPU is there any objection to leave to intervene being granted? I'll take it as an application to seek leave to intervene.

PN12

MR DIAMOND: None from us, your Honour, given the nature of the proceedings, no.

PN13

HIS HONOUR: Yes, I'll grant leave to intervene in both instances. Are you seeking to make an appearance?

PN14

MR J. BYRNE: Yes, your Honour. If the Commission pleases, I appear for the Australian Workers Union, AWU Tax Branch. We seek leave to intervene.

PN15

HIS HONOUR: I grant leave to the AWU to intervene also. How is this matter to be handled? Mr Diamond, I think I have given you the reason why you have a somewhat broader task than you might have anticipated.

PN16

MR DIAMOND: Your Honour, the position is this. Fieldforce has been in business for almost 10 years providing meter reading services in various states. It has registered since its inception one enterprise agreement under the New South Wales state legislation and subsequent to that two EBAs under the Commonwealth legislation for its work force.

PN17

Over those years we have looked and looked for awards which apply and have not been able to find any. Now it is the case that the various organisations which supply either electricity, water or gas have, if I might use the term, your Honour, in-house awards applying to their meter readers. Not all of them do, but most of them do and they have a variety of provisions, but there is no award which applies to, as it were, a third party organisation that employs meter readers. It had been my client's intention simply to use Labourforce services as a vehicle to supply casual labour to its core workforce, which it employs under the EBA that was registered prior to this and to which your Honour alluded. So I must admit we had not seen it as a matter of great moment in the context of things and, indeed, that is why there are only a couple of employees under it at this time.

PN18

In discussions with Mr Benfell and, very briefly, Mr Rizzo when they arrived there was some talk about what awards might apply, but without any accord being reached and, your Honour, I don't know, I have not, I must admit, read the Full Bench decision from 3 December in the Power Corp case.

PN19

HIS HONOUR: I don't know that has great deal to do with the current problem, Mr Diamond, other than to indicate that, I suppose, there is an area of contest likely to emerge. I mean if this were a matter of utter indifference and you had employees in Taree then, as you probably know from experience, I tend not to bother much about two employees from Taree with and LK provided they are not doing themselves positive injury by entering into an agreement. It is only when there are employees from Taree who look as though they might be about to take over the whole nation with a deal that is struck there that I start to get a bit concerned and I in that case run the matter - rule over it a bit more solidly.

PN20

In this instance I am almost on notice, and I am on notice because of awareness of a relatively intense battle in Victoria, that this was an area of potential conflict. Now, I suppose, the collective forces that are hear can satisfy me on that score and say, "Well, look this is a pretty good agreement. We would be happy to have it if it were available to ourselves", then the problem goes away. Then I am not going to insist upon it, but it did look to me a little bit like a Greenfields agreement - I am sorry, Brownfields struck with some employees who would not have known what day it was, I would suspect, in Western Australia.

PN21

MR DIAMOND: I think certainly, your Honour, if Mr Cahill's organisation could take over Victoria they would, because they have been trying hard for 10 years and have never got a start and we even invested heavily in coffee and cake with Mr Rizzo there and still could not do it.

PN22

HIS HONOUR: Well, ARIS was interested, I think, in coming, but they seemed more interested in getting a copy of the agreement, which I refused to give them.

PN23

MR DIAMOND: Thank you for that, your Honour. We noticed that.

PN24

HIS HONOUR: Saying that it was a matter that would await the next stage if they turned up at the hearing. They could get a copy by coming to the hearing, presumably, but the first task was to see whether there really is any problem or whether I am barking up the wrong tree with it. Presumably, if there is no award, I think you still have to end up identifying something like an award that one takes as the point of reference for the no disadvantage test. It is not a matter of whether an award actually applies. It is a matter of finding one that sets a satisfactory standard and then measuring the other provisions by it.

PN25

MR DIAMOND: Well, your Honour, no doubt the unions will have a view on that. All I can say is this, Fieldforce has been and continues to be the top payer of out-sourced meter readers in the country, which may be why we have not been able to get a contract in Victoria to save our lives. Equally there is no doubt that the rates provided under this agreement are a discount from the Fieldforce EBA rates, but as I did indicate to the unions prior to the hearing commencing, it was for the reason that we saw this agreement as supplying casuals only to that core workforce.

PN26

HIS HONOUR: I think it says that, doesn't it?

PN27

MR DIAMOND: I think it does. If people are concerned - - -

PN28

HIS HONOUR: Who are engaged - well, it is explicit - on a casual basis by Labourforce.

PN29

MR DIAMOND: Your Honour, if people have got concerns about what is in the agreement, then I suppose they can let us know.

PN30

HIS HONOUR: It is not so much the concern I have. That is a separate phase, Mr Diamond. I would need to assess it by reference to the no disadvantage test and, unless there is something pretty gross - I would not say that is putting it too high. I am not throwing away people's rights, but I do need to know what I am measuring it by and potentially I have got to measure it by common rules that could apply in ACT and the Northern Territory, as well as virtually unseen standards that might apply to this sort of work in the other states and that is the area about which I was ignorant and hence I felt that others should be given at least an opportunity.

PN31

If I just take the metal trades and say, well, it looks okay by that, but apart from the Victorian old SEC award, I think it is, effectively it does apply, I think, pretty widely across the electricity reading groups and where, I think, the Full Bench decisions have come up with a weekly rate of around 528 for an experienced reader, that is a 1998 rate. Apart from that level, I do not really know much about it. They had cars and various other provisions that went into it.

PN32

MR DIAMOND: When Justice Boulton registered the first one, and that was a few years ago - - -

PN33

HIS HONOUR: That is for Fieldforce?

PN34

MR DIAMOND: Yes. I hauled out a number of awards from the electricity, water and gas organisations. That was a few years ago and my recollection is that it was difficult to marry up what Fieldforce was doing with the way in which they had been employed by the organisations and for that reason, I think, the award comparison was somewhat frustrating, but in any event, your Honour, I suppose, we need to hear from the unions on the matter. All we are interested in doing is getting it right and if we can then we will, your Honour.

PN35

HIS HONOUR: Yes, who wanted to say something?

PN36

MR BENFELL: Your Honour, I received a copy of the proposed agreement this morning. Unfortunately, my earlier attempts to obtain a copy were unsuccessful and so it is very difficult to make submissions in relation to the proposed agreement. I understand the main area dealt with is 170X(f). The electrical division of the union has agreements certified in the State Commission of Western Australia in this area and I understand that there agreements also in Victoria.

PN37

I think it might be more efficient for us, your Honour, to adjourn into conference so we can discuss which awards may be appropriate. That might settle the matter faster.

PN38

HIS HONOUR: Yes. Does the CEPU have much problem with what is broadly proposed? I am not asking you to comment on the detail of the agreement, but if the agreement had been certified without any further ado, is it a matter that you consider would have generated, to put it bluntly, conflict or a risk that entitlements, if it were applied in other states, would be cut across?

PN39

MR BENFELL: Well, that is the advice I have received from our West Australian branch. Other branches, including New South Wales branch, have advised me they have agreements, but the problem, of course, is it only deals with casual employees.

PN40

HIS HONOUR: Yes.

PN41

MR BENFELL: And it has been admitted or put to you that the rates are less than those provided in Fieldforce and obviously the Fieldforce employees' employment long term may be jeopardised by casual employees being paid less taking over their work, but that is speculation. Because I have only just received the agreement, I have not had a chance to confer with my colleagues in other branches.

PN42

HIS HONOUR: Yes, that raises - it would not be ordinarily a ground on which the Commission would find any reason not to grant an agreement.

PN43

MR BENFELL: Yes, I accept that.

PN44

HIS HONOUR: The area where my concern was generated, occasionally with LK agreements, is where it is negotiated with a small group of employees, but has a potential to apply to a very wide group of employees in a way that could undermine not agreement conditions, but award conditions.

PN45

For instance, if there were a State Common Rule in New South Wales that gives entitlements to casuals after a certain time or if the Metal Industry Award were to apply, if you had been engaged as a casual for a year, then you may convert to full-time employment under the State Award. If they came out of the State Award under a Federal Agreement, they would probably also move out of long service leave or assuming casuals have an entitlement to redundancy or severance pay up to a certain time, those sorts of protections, that is the area of the Commission's concerned in some instances for some of the work.

PN46

MR BENFELL: Which I presume is a matter you need to - - -

PN47

HIS HONOUR: It can be done by the unions. The AWU, for instance, in Tasmania have an agreement certified in Tasmania that covered off-shore oil-rig drilling or some such thing and it came as a bit of surprise to the CEPU or somebody, who got onto their boats and sailed and went out to the rigs to find that the agreement tended to be a little bit more advantageous to the employer and less advantageous to the employees than had been the rule in Victoria.

PN48

MR BENFELL: Which resulted in quite a large dispute, I understand.

PN49

HIS HONOUR: That is a problem of life, where it is a competition between agreements that where it is an award that could be undercut, it is a problem. I am not suggesting it is here but I just needed to know what awards and what is the parameter of ...... operates. I mean, if the worst comes to the worst, you just say, well, how does it look compared with metal trades and that is, I would have thought, near enough is good enough. For that matter, you could have an AWA and I doubt whether anybody would spend much time looking at whatever it was that came through there.

PN50

It is because this has an implication to cover quite a few employees, be the basis of contract bids in other States, that I didn't want to certify sight unseen, so to speak.

PN51

MR BENFELL: We appreciate being notified, but of course the problem is we have only just received the proposed agreement. We were not aware until this morning that it purports to cover such a wide area potentially.

PN52

HIS HONOUR: I think you should have been because that was the purpose of the notification. That is the one thing, I think, out of the agreement I did disclose. That is the reason why it has a potential. I will act on your suggestion. I realise that you are at a bit of a loss as probably Mr Diamond is. He has a limited objective with his agreement and it made be that it can be simply dealt with on the basis of the existing contracts. If they are not trying to colonise the whole of every State then perhaps the problem can go away and we can look at it over a longer basis, if he has had Mr Rizzo to tea and coffee in the hope of getting some contracts up, then you might be able to resolve it.

PN53

I am not here trying to create unnecessary problems. If I am assured that there is no sinister sort of brownfield, greenfield element about it then I will let you all go and have a cup of coffee.

PN54

MR BENFELL: We share a common objective then.

PN55

HIS HONOUR: Yes. Mr Rizzo?

PN56

MR RIZZO: Thank you. I think obviously my organisation objects to LK agreements in principle but this is not the point of the hearing here today. I would like to make other submissions to the Bench as to what our views are on the award issue. I tender a document.

PN57

Our view is that this is not an award-free area and I think your Honour already pointed out to the case in Victoria with the Power and Energy Award, or colloquially known as the Quad E Award 1998. Some research over the last day or two demonstrates that there is a whole lot of State and Federal energy awards which cover the meter reading area. The first lot are a whole bunch of State awards in New South Wales and then it moves onto the Hydro-electric Corporation Tasmania, which is a Federal award.

PN58

The next one is the Victorian award, the Power and Energy Industry, Electric or Electronic Engineering Employees Award 1998. The next one is also a Federal award which is the Electricity Industry Western Power Corporation Award 2000 and the next again is also a Federal award, the South Australian Power Industry Award 2002. The following two are the State Awards from Queensland.

PN59

My clear understanding was that all these awards be it Federal or State, covering meter reading functions. Therefore, we would assert quite strongly that it is not an award-free area. As for which award should be the basis for a no-disadvantage test, we would propose, and admit somewhat parochially, that the relevant electricity award in Victoria, being the Power and Energy Award, would be the correct award. That is part of that document that I have tendered to your Honour.

PN60

The next part of the document is, in fact, the updated Safety-net Adjusted Award 2002 and it shows the various award rates for the classifications. The meter readers in Victoria have traditionally been paid at band 2.5 which I have asterisked towards the bottom of page 1. That would be their current rate of pay in Victoria under this particular award.

PN61

All of the distribution companies that employ meter readers in house abide by this award and two companies which have out-sourced their meter reading function to AMRS, which you are aware of, they are covered in one case a certified agreement and in one case we are still arguing over the issue of a certified agreement of Powercor, but certainly the underpinning award, the parent award, is the Power and Energy Award as documented.

PN62

We submit that a correct rate of pay, at least for meter reading in Victoria, would be at that band 2.5. I can also inform the Bench that while that is the award rate, you would appreciate of course that there has been EBAs that sit on top of the award. EBAs that sit on top of the award in the Victorian power industry take that rate considerably above that $35,020 rate.

PN63

Can I just give you an example of a particular certified agreement?

PN64

HIS HONOUR: I make the first document ASU1.

EXHIBIT #ASU1

PN65

HIS HONOUR: You have a copy of that for Mr Diamond, have you?

PN66

MR DIAMOND: We have that, thank you.

PN67

HIS HONOUR: The second document is ASU2, that is a copy of the AGL Electricity Certified Agreement, or extracts of it.

EXHIBIT #ASU2 EXTRACTS OF THE AGL ELECTRICITY CERTIFIED AGREEMENT

PN68

MR RIZZO: Yes, it is an extract. This was certified very recently, as you can see, May 2002, some six months ago. What I have simply done is appended the schedule of pay. The meter readers at AGL are still in house. They have not been out-sourced. They are part of the AGL business and my clear understanding is that the meter readers, if you look at the attachment on the pay rates, I have asterisked page 111.

PN69

If you look under the July 2002 rates of pay, which are the current rates of pay, a meter reader at AGL would be earning an annual sum of $42,672. Then, of course, the next pay rise in April 2003, it would move to $44,394. But if we look at the current rate, which is $42,672, that is some $7000 above the award rate. I know we are only talking about awards here but I do want to make it clear that there are EBA rates with meter readers in Victoria which go significantly beyond the award rate as far as meter reading is concerned.

PN70

HIS HONOUR: My concern must, of course, be with award rate.

PN71

MR RIZZO: With the award rate, yes, I appreciate that, your Honour.

PN72

HIS HONOUR: Could I put this, it might assist in where we are heading? The 4E award, if I can call it that, two questions about it. Is there any reason why it could not be taken as representative of the awards that would apply to meter reading across electricity, gas and water? Presumably you represent people in all those areas, do you?

PN73

MR RIZZO: We do represent people in electricity and water, your Honour, but - - -

PN74

HIS HONOUR: Gas has been privatised, hasn't it, I suppose?

PN75

MR RIZZO: It has been privatised, but it is largely AWU that has got the membership in Victorian Gas. It is the old GISOF branch, which merged at one stage with the AWU.

PN76

HIS HONOUR: Well, the second question goes, are there any other provisions in the electricity - sorry, in the 4E award that are relevant? I thought there was some form of inflator of an allowance that the experienced reader rate - - -

PN77

MR RIZZO: Yes, there is a meter reading allowance, your Honour, in the award.

PN78

HIS HONOUR: So, that is what about 4 per cent, is it?

PN79

MR RIZZO: It is 5 per cent.

PN80

HIS HONOUR: 5 per cent that tacks on to - that is after one year, I think, isn't it?

PN81

MR RIZZO: After one year and then it is adjusted on an - obviously an ongoing basis according to pay rates.

PN82

HIS HONOUR: Yes, so the 5 per cent would apply to the 671 weekly rate figure?

PN83

MR RIZZO: Yes.

PN84

HIS HONOUR: To inflate it.

PN85

MR RIZZO: Yes, correct.

PN86

HIS HONOUR: But otherwise my impression now to the AMRS case was that, in the award, there was not of other provisions specific to meter reading functions?

PN87

MR RIZZO: Apart from that, your Honour, yes, that is correct.

PN88

HIS HONOUR: Yes.

PN89

MR RIZZO: It is true to say that the quality award, your Honour, is a general award across the electricity sector.

PN90

HIS HONOUR: Yes, it is not a common rule award in Victoria, though.

PN91

MR RIZZO: Yes, and - - -

PN92

HIS HONOUR: Are you saying it is?

PN93

MR RIZZO: Sorry?

PN94

HIS HONOUR: Did you say that is a common - Victoria doesn't have common rule awards, does it?

PN95

MR RIZZO: No, it is not a common rule award.

PN96

HIS HONOUR: Yes, I see.

PN97

MR RIZZO: Your Honour, to finalise, though my colleagues - well, one colleague has seen the thing, I haven't seen it at all, I just flicked through it quite quickly, now the proposed LK agreement, so I don't have access to it. I would like access to it, and I understand we could get access to it at today's hearing but as I say, I have had absolutely no opportunity to have a look at it and, therefore, would have very little to say about its consequences, but my concern is that - and the point of my attending the hearing here today, is the concern about this proposed agreement becoming a universal agreement across three sectors and across the country.

PN98

Our view would be that that is not a precedent that we are particularly happy with and as I have already submitted to you, we think there are awards out there which cover meter readers, and there is a specific one that applies to the Victorian one, which does cover meter readers, and we would submit to the events of that. They should be taken into consideration when the bench is considering the view under 170XF. If your Honour please.

PN99

HIS HONOUR: Yes, thank you. Yes, Mr Byrne?

PN100

MR BYRNE: Thank you, your Honour. My interest is in the gas industry viewpoint. Back in 1995, there was a merger of the Gas Employees Union, and the Gas Industry Salaried Officers Federation, which was GISOF, as Mr Rizzo eluded to, and the Gas Employees Union covered meter readers within the Gas Industry (NSW) and GISOF covered the white collar meter reading inspectors.

PN101

In 1996, AGL, who was the principal employer of meter readers and meter reading inspectors in New South Wales, outsourced their meter reading activities to contractors, and we endeavoured to try and cover those contractors. Indeed AGL are currently using AMRS for the metering reading activities and I had a meeting earlier this year with Mr Brett Gallagher of AMRS and some of his associates with a purpose of making an industrial agreement with them on behalf of meter readers and metering reading field officers as metering reading inspectors are know termed.

PN102

So our interest is that we traditionally covered gas meter readers and meter reading inspectors here in New South Wales and in Victoria and in South Australia and we would oppose the making of a section 170LK agreement to cover that area.

PN103

HIS HONOUR: Well I think you might oppose it but I think I don't know that gets you anywhere much Mr Byrne, what can you tell me about the awards - do you have any awards that bind those people.

PN104

MR BYRNE: I understand an award from my colleague of Slaters this morning told me that there is an award existing in Victoria called the Victoria Energy Gas Industry Award. I have got no hard copies of that because of the short notice and indeed in New South Wales, here we had federally registered agreements covering meter readers right up until 1996 with AGL.

PN105

HIS HONOUR: But no award coverage in New South Wales of which you aware for gas metering?

PN106

MR BYRNE: I am not aware of any, I thought that the ASU might have had any an award covering meter readers in an agreement, an industrial agreement covering meter readers in Victoria. That is all the information I have your Honour. If the commission pleases.

PN107

HIS HONOUR: Thank you Mr Diamond, a couple of points, what do you say to making the agreement available, it is a public record and ordinarily for a hearing I would do so, it is simply that I would have thought that it might the quickest way to skin the cat in terms of allowing the unions to have a look and they put something later to me if they wish to.

PN108

MR DIAMOND: We don't have a problem with that your Honour. It would be interesting to see how long it takes, winds up on AMRS' desk.

PN109

HIS HONOUR: Yes, is that a matter of sensitivity because I am prepared to issue a direction about it? Is there any undertaking that you could give to some extent these are public documents and it is a matter of public record that obviously and there are areas where people are looking at bidding for contracts there are sensitivities. I have tried to separate out the issue that effects all of you from the mere detail. Can you give an undertaking that it will be used for your own internal purposes rather than provided to AMRS?

PN110

MR RIZZO: Your Honour on behalf of my organisation I can give that undertaking. We have got no great friendship with AMRS I can say.

PN111

MR BENFELL: Your Honour the CEPU can give that same undertaking.

PN112

HIS HONOUR: Mr Byrne?

PN113

MR BYRNE: Yes, the initial, likewise the AWU TAPS branch will give that undertaking.

PN114

HIS HONOUR: Very well, I will release it in due course or a copy, I don't think Mr Byrne would have necessarily come along with multiple copies. Where do we go from here? What is the best way to tackle it, you obviously haven't had a look at these county council wages, staff awards and those ones, my disposition would be to try to select one that I want, one that reaches across the fairly broad area and I do have some concern about the points that Mr Rizzo has raised about reach beyond the state particularly into areas that I don't understand. Have you got more limited objectives than your application clause seems to suggest? Is that a way in which it might be dealt with?

PN115

MR DIAMOND: It may be that what we've got to do is amend the document. Global documentation has been on the agenda although looking at it I can see very clearly how that conclusions could be drawn and perhaps it might be better on reflection if we move the document - - -

PN116

HIS HONOUR: You would have seen a touch more clearly Mr Diamond if you had had the joy of sitting in on the case that Mr Rizzo has just come from with AMRS and the ASU which went on for quite a long time before Commissioner Tolley and then before a Full Bench, or it felt like a long time at least before we got a decision on a lot of point that really had nothing much to do with employees and the tussle between the union, I regret to say.

PN117

MR DIAMOND: I apologise to the commission, it may well be a fault of mine in the sense that I'd fallen into a pattern of drafting from the earlier agreements and I hadn't really looked beyond that pattern and I wasn't aware of the high temperature associated with the matter involved AMRS, it just wasn't aware of it at all. Clearly in context I can see how the concerns may be raised. May I suggest this your Honour, if the matter today is adjourned to allow the unions to consider their position and my people might also consider their position and whether an amended agreement might be a more appropriate way to go so that the potential threat that people see is removed.

PN118

HIS HONOUR: Yes, You might look also, if you are doing that, and I would not have thought the provisions are too fatal, I have not looked closely at the detail of the agreement, but if you are operating predominantly in New South Wales I suppose the short term casuals, then I cannot see what problems you have got but you might just apply your general knowledge if they do go on longer to what provisions out of the state areas would normally be preserved. You would run into a bit of problem with the METLS award if those casual provisions are applied because they have got the right to convert after a year.

PN119

I am not sure about the multiplier and the casual rate because you are providing a casual rate then you do not need the 25 per cent, whatever it is, figure but it is those sorts of preservation provisions that essentially leave the Commission a bit threadbare if it has not got an award to compare with and it has difficulty in any event, at least I have to say, I have where the comparable award is in fact a state award because one does not really know what bells and whistles come within the award, usually we have not got a copy of it, even if we do get a copy of it, you have then got to read it and inspective with the employment Act and various other provisions and we have done some work but it is a fairly, I have to say, tedious exercise, though it is much better dealt with if people are not intending to run away from the state standards, if they just incorporate them and that overcomes the problem.

PN120

It is the absence of that sort of provision that triggers alarm on the part of the Commission and you would see it would be magnified when, it is not only New South Wales state awards but the whole kit and caboodle that could come blowing back when somebody else other than the Commissions approved an agreement of this kind without having thought about what went on in the Northern Territory, or the real reason mostly is that it had not thought about what went on in the Northern Territory and had not even noticed that it applied there. You have the misfortune that you strap somebody who had sat on the AMRS, as mentioned, they can read it as a sinister threat to Mr Rizzo's members livelihood, and I thought it we might have got another appeal.

PN121

MR DIAMOND: Thank you, your Honour.

PN122

HIS HONOUR: Yes, well I will stand the matter over, perhaps if people are prepared to wait, my associate will be good enough to run off a copy of the agreement, there is no reason why the whole of the document could not go, is there?

PN123

MR DIAMOND: We are relaxed about that, your Honour.

PN124

HIS HONOUR: That way if it is on the condition, I think it is pretty manifest that Mr Diamond is seeking to find an accommodation, so I would expect that the union is not giving him the same privilege of reasonable privacy about the way in which the matter is conducted, could you run those off immediately afterwards? Do you need a copy also of Mr Rizzo's ASU 1 and 2, has everybody got enough copies of those?

PN125

MR DIAMOND: I have got everything I need here, your Honour, speaking personally.

PN126

HIS HONOUR: But the unions got those, or they can get them from Mr Rizzo presumably, or have you got them already?

PN127

MR BYRNE: The AWU did not get a copy of the document, your Honour.

PN128

HIS HONOUR: Right, you might run off an extra copy of those two. Very well, I will stand the matter over and then when you are ready to come back you might apply again, just notify my associate, Mr Diamond, thank you.

PN129

MR DIAMOND: Thank you, your Honour.

PN130

HIS HONOUR: It will not be necessary for the unions to attend any future hearing with the matters sorted out.

ADJOURNED INDEFINITELY [11.05am]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #ASU1 PN65
EXHIBIT #ASU2 EXTRACTS OF THE AGL ELECTRICITY CERTIFIED AGREEMENT PN68