C0082/999, Transcript of Proceedings [2003] AIRCTrans 1057 (25 March 2003)

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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT O'CALLAGHAN

C No 00829 of 1999

ADMINISTRATIVE STAFF (INTERNATIONAL FREIGHT FORWARDING AND CUSTOMS CLEARING INDUSTRY) AWARD 1992

Review under section 51, item 51,
schedule 5, Transitional WROLA Act
1996 re conditions of employment

SYDNEY

10.32 AM, TUESDAY, 11 MARCH 2003

PN1

THE SENIOR DEPUTY PRESIDENT: Good morning. Can I have some appearances please?

PN2

MR NUCIFORA: If the Commission please, I appear for the Australian Services Union, Nucifora, initial J. I have with me Steve Bower, Organiser of the New South Wales Branch of the ASU.

PN3

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Nucifora.

PN4

MR ROCHFORT: Good morning, your Honour. Rochfort, initial P. I appear on behalf the Customs Brokers Federation of Australia and also all of the respondents to the award who have not disappeared, with the exception of Federal Express, of course, DHL and Wilson Australia and with me is Ms Parrott, initial C.

PN5

THE SENIOR DEPUTY PRESIDENT: Mr Rochfort, I had earlier understood that you represented all of the respondents to the award?

PN6

MR ROCHFORT: Yes, a couple have dropped off since then. Federal Express, of course, are represented independently.

PN7

THE SENIOR DEPUTY PRESIDENT: I see. Yes, I understand Federal Express are here.

PN8

MR ROCHFORT: Yes.

PN9

THE SENIOR DEPUTY PRESIDENT: I guess I am a little concerned that there might be employers who are not represented in these proceedings.

PN10

MR ROCHFORT: Well, in fact, there are but that's not for want of letting them know about the proceedings and that's why there's been this issue about the respondency list, your Honour. The respondency list, as I have nominated it, has been those entities who I know to be existing, including in their changed form. Now, that is most of those respondents but Federal Express choose to be independently represented. BHL are aware of the proceedings. In fact, I've had discussions with them, and they are not here. I haven't made any suggestion to them but they've had the opportunity to appeal and Wilson Australia have recently advised that they no longer want me to represent them. They have been made aware of these proceedings and told the hearing was on. They are not here but they have been informed by me personally.

PN11

Now, there's a great unwashed in the old respondency list. I suspect that many of those may have disappeared with the effluxion of time or been merged or simply remained themselves but I don't know who they are. My constituency, so to speak, are those who come to me through Customs Brokers Federation of Australia and who give me an authority. As I say, with Wilson Australia, for example, that authority has been withdrawn.

PN12

THE SENIOR DEPUTY PRESIDENT: I see, thank you.

PN13

MS FERRIER: If the Commission please, Ferrier, initial E. I see leave to appear for Federal Express Australia.

PN14

THE SENIOR DEPUTY PRESIDENT: Thank you, Ms Ferrier. Is there any objection to Ms Ferrier's application for leave to appear?

PN15

MR NUCIFORA: No, your Honour.

PN16

MR ROCHFORT: No, your Honour.

PN17

THE SENIOR DEPUTY PRESIDENT: Very well, I grant that application. Now this matter this morning has been listed for arbitration. On the basis that, I understand, that the parties have agreed that they have, to a significant extent, exhausted the process of conciliation which has now been going on for some substantial period of time and, in fact, prior to the publication of my draft order in the decision of 8 August 2002, I expressed a concern that the more the parties appeared to meet on this matter, the greater the list of non-agreed items. So I take it that the flurry of material provided to me is not indicative or an ever broadening range of matters in dispute.

PN18

I am approaching this morning's hearing from the perspective that on 27 November last year I wrote to the parties and identified, from their various submissions to me, some 17 items with which one or more of the parties was in dispute relative to the draft order that I published in August. If any party does have another matter contained in that draft order which they wish to dispute, then they will need to advise me in the course of this hearing, otherwise I'll take it that all of the remaining components of that draft order are agreed.

PN19

Now, secondly, I can advise the parties that I have read the various submissions. I have read the submissions from Fed Ex. I have read the submissions from the ASU and I have read the various submissions, in the appropriate sequence, from Mr Rochfort and I thank the parties for those submissions. I would like to seek some advice, first of all, from the ASU and, secondly, from the other parties, as to the extent to which it is intended that witness evidence be called and, if so, then do the parties have any plans or preferences in terms of when that evidence would be called?

PN20

MR NUCIFORA: Thank you, your Honour. Maybe, as I've mentioned, that if we start the ball rolling. In terms of the 17 issues that were referred to in your list, your Honour, we would agree that they are the outstanding issues. As a result of a closer analysis of your draft order and of some discussions with the parties, I would say that there are a number of issues that probably require more clarification, rather than wholesale change, within the 17 issues but before we got to those issues, in terms of the witness evidence that your Honour has requested, I refer your Honour to instructions sent out to the parties on 27 November which included, of course, today and tomorrow being set aside for formal hearing and there were certain requirements under that, most of which the parties have met, particularly in relation to the exchanging of the written submissions.

PN21

In terms of witness evidence, I don't believe that apart from Mr Rochfort's reverence to Ms Parrott's - and some material that Ms Parrott may take you to, there has been no exchanging of documentation and witness statements in the last week. We have indicated to the parties that we may have relied on Mr Bower's witness evidence and that would be on a fair and equitable basis. That is, that we hadn't exchanged a witness statement from Mr Bower but I would indicate to the parties that if there was going to be any witness evidence, ti would go to the actual hours of work and shift arrangements of the Clearing Industry, and probably just that.

PN22

That probably narrows down some of the things that we raised in our submission about where we might provide further witness evidence but, particularly, that would be it, but I would understand if my friends on the other side have said, well, we hadn't exchanged witness statements. Now, we would say the same in terms of any of the witness evidence that they are providing, that it should be limited to the, as I mentioned in Mr Rochfort's case, the references to what he has attached to his written submissions and, of course, it would be a question of waiting in terms of whether Mr Bower were to go in the witness box.

PN23

Now, I'm not aware of there being any other witness evidence and that may be a point of contention with the other side. I'm happy to argue that point. What we have tried to say is, rather than go to lengthy submissions on witness evidence, there are probably some general areas of agreement in terms of what hours are actually worked in the industry and in terms of our concerns about the award. I think what we have proposed to the parties - and earlier on there seemed to be some agreement from the other side - is that this shouldn't take two days. This matter should be dealt with in one day. It has gone on for long enough. We are going to try - today we would propose - and I'm waiting to hear what the other side might say - that we sit down and go through those issues that can be clarified and I would think that that would take no longer than a few - one or two hours - and if we are left with, what I believe to be remaining issues, as we were still dealing this those in the last week - and I think as early as this morning I got a message from Mr Rochfort - I won't go into details but it goes to the key items of hours of work, shift work, and annualised salary not being agreed to and I think that's outstanding. But I would say that a lot of the other issues, while there isn't agreement, some of them require clarification and it may be possible around the table to deal with those.

PN24

I would say that, in terms of Federal Express's submissions, that we are clear on their position and we would say that if we are going to deal with this either way, whether it be by conciliation or by arbitration, is that we actually go to their submissions - and we have a particular view on those - and maybe we can deal with those first so that we can then deal with the rest of the award.

PN25

THE SENIOR DEPUTY PRESIDENT: There are two questions that arise, Mr Nucifora. One is that the matter has been listed for arbitration. I certainly have no intention whatsoever of prohibiting the parties reaching agreement. If you want another three minutes I am very happy to allow that, but you have had some years to reach agreement in terms of this award and, on that basis, I'm proposing that we look at this as very much of an arbitration exercise.

PN26

MR NUCIFORA: Yes, your Honour. If that is the case, then we would certainly seek to challenge any further witness evidence that might be introduced in this matter and we otherwise seek to - - -

PN27

THE SENIOR DEPUTY PRESIDENT: Does that mean that you still seek to call Mr Bowden as a witness?

PN28

MR NUCIFORA: We may, yes, we may in this, your Honour.

PN29

THE SENIOR DEPUTY PRESIDENT: Yes. In which case, that gives rise to my second question: is it possible that Mr Bowden's evidence would be given as a single, if you like, batch of evidence?

PN30

MR NUCIFORA: Yes.

PN31

THE SENIOR DEPUTY PRESIDENT: Perhaps at an early stage in the proceedings?

PN32

MR NUCIFORA: Yes.

PN33

THE SENIOR DEPUTY PRESIDENT: And you might then refer to various components of that evidence in any submissions you make on any of the 17 disputed items.

PN34

MR NUCIFORA: Yes, your Honour, either way. I thought earlier it might have been - we were about to propose going through each item if we were going to arbitrate and then, on the other hand - - -

PN35

THE SENIOR DEPUTY PRESIDENT: Well, you see, I am trying to avoid Mr Bowden having to undertake too much exercise and jump up so as to be a witness on half a dozen or more different occasions.

PN36

MR NUCIFORA: Yes. No, really, his witness evidence would go to hours of work and shift work.

PN37

THE SENIOR DEPUTY PRESIDENT: Very well, thank you.

PN38

MR NUCIFORA: Thank you, your Honour.

PN39

THE SENIOR DEPUTY PRESIDENT: Mr Rochfort, we have got your position on those issues.

PN40

MR ROCHFORT: The message that Bower referred to was in response to an e-mail that I - - -

PN41

THE SENIOR DEPUTY PRESIDENT: Sorry, Mr Bower?

PN42

MR ROCHFORT: I beg your pardon, Mr Nucifora - was in response to an e-mail that I received from him after we had a meeting in Melbourne on Friday - Thursday, I beg your pardon.

PN43

THE SENIOR DEPUTY PRESIDENT: Yes, the two of you have probably worn out the e-mail system.

PN44

MR ROCHFORT: Just about, your Honour, yes, but nevertheless, we persevere. Without going into the details of that particular e-mail, it concludes this way:

PN45

I'm not wasting my time on the rest of your package when you are just taking me for a ride.

PN46

Now, I took exception to that comment.

PN47

THE SENIOR DEPUTY PRESIDENT: Mr Rochfort, I can understand that you might take exception but fundamentally we are here to today to arbitrate the issue. I have no doubt that, given your experience and that of Mr Nucifora, even in this particular award matter, you and he will ultimately make your peace but I'm focussed today on what it is that you want to tell me about how you see the arbitration being conducted and what evidence you may or may not want to call.

PN48

MR ROCHFORT: Yes, I say that because it put a new complexion on things. When I thought, as in Ms Parrott, after our meeting in Melbourne on Thursday and Ms Parrott provided Mr Nucifora with a synopsis of that meeting, that there wasn't a great attempt to reach some consensus before we came here today. Mr Nucifora, in his words, didn't even bother taking into account what I had said, for reasons known best to him.

PN49

So, that puts a new complexion on what I have got to do and I have advised Mr Nucifora, in that message that Mr Nucifora referred to, that I will, if necessary, bring the evidence which establishes my position. It is, at this stage - and Mr Nucifora is aware of that evidence - in a form of research documents prepared by Ms Parrott. So, if it is necessary to identify those documents, then Ms Parrott will give that evidence but it will be as limited as that. It can be done early on in the proceedings because it is material that goes to the sort of issues that your Honour is being made aware of, because your Honour has, at all times, invited the parties to address issues which are peculiar to this industry and that is what these documents seek to do; they seek to identify a patter of work which is peculiar to this industry and that has been done in the form or research documents that Ms Parrott has prepared.

PN50

So, that is the evidence which I propose but if it is necessary for me to go further into that because of the agreement which I thought had been reached up to a point, but is now not reached, well, I have informed Mr Nucifora that I will seek to bring other people who will speak to those documents as well because they are the informants in relation to those documents and if Mr Bower is going to get up and say what Fred said to him or what Johnny said to him or something, well, I'll be asking for Fred and Johnny to come here to say exactly what the say, not what Mr Bower thinks they said.

PN51

So, I would like - on Thursday, yes, Mr Nucifora and I agreed, in the context of the meeting, that in fact this day sitting could be all it needed but that depends on how difficult Mr Nucifora is going to make it for me to put the proper material before the Commission so the Commission can be informed as to the nature of this industry. The last time this award was made Commissioner Cross, for example, went on an inspection as part of the hearing of the matter when the award was first made. This is a splitting of the award in 1992 and I'm not asking the Commission at this stage to do that because I think the evidence can be advised to the Commission just as satisfactorily with the material that we have.

PN52

I don't want it to be prolonged but Mr Nucifora has advised this morning that as the matter has been set down for two days, I'm conscious of the pressure on the Commission and the pressure that the Commission has because of this particular program that it needs to attend to, I don't want to prolong it but I need to do the right thing by my members and I need to present that evidence as best I can with the material which is available to me. Now, hopefully we can deal with that - and I agree with Mr Nucifora in this respect; that we might achieve a lot more by conference and I have no objection to the matter proceeding - - -

PN53

THE SENIOR DEPUTY PRESIDENT: Mr Rochfort, short of looking through my file, there have been many, many conferences on this matter and, in fact, in the course of a number of those conferences I must say I've been relieved that I've been in Adelaide and that the parties have been in different parts of Australia because otherwise I would be somewhat concerned that your words might accelerate beyond words. I have indicated very clearly to both parties that the matter has been listed this morning for arbitration on the disagreed matters. I am understanding from you that you also endorse the fact that there are the 17 disagreed matters.

PN54

MR ROCHFORT: There are 17 matters in which there has been a measure of agreement reached on some and no agreement reached on others.

PN55

THE SENIOR DEPUTY PRESIDENT: Yes and today's hearing is fundamentally for the purpose of arbitrating those issues.

PN56

MR ROCHFORT: Yes.

PN57

THE SENIOR DEPUTY PRESIDENT: Or perhaps I should rephrase that, for hearing in evidence and submissions relevant to those issues.

PN58

MR ROCHFORT: Yes.

PN59

THE SENIOR DEPUTY PRESIDENT: Now, I have noted that both you and Mr Nucifora have had difficulties in terms of the direction that I issued on 27 November in terms of complying with the requirement that stated that:

PN60

Should any party propose to call witnesses or rely on documentation, witness statements and a copy of this documentation are to be exchanged and provided to the Commission by 4 March 2003.

PN61

I am understanding your submission to be, at this stage, that you would propose that Ms Parrott be called to give evidence and that her evidence could be received also at an early part of these proceedings.

PN62

MR ROCHFORT: Yes.

PN63

THE SENIOR DEPUTY PRESIDENT: But that you may seek to argue, at a future point in these proceedings, for further witness evidence to be called. Is that correct?

PN64

MR ROCHFORT: Only in corroboration of that evidence and the subject - - -

PN65

THE SENIOR DEPUTY PRESIDENT: Well, let's cross that bridge when we get to it because I will need to be persuaded in that regard, all right?

PN66

MR ROCHFORT: Thank you.

PN67

THE SENIOR DEPUTY PRESIDENT: Now, Ms Ferrier, have you got anything to state on this issue of programming?

PN68

MS FERRIER: Only this, your Honour: in so far as witness evidence might be concerned, it is not our intention to call any witness evidence. There are some factual issues in our submissions. I don't understand those factual issues to be in any way disagreed with by the other parties. They are all, sort of, fairly bland factual issues, if I can put it like that, your Honour.

PN69

The one other thing I'd say, in relation to programming, is that my brief in relation to this matter is on a very confined compass and it's in relation to the Fed Ex Enterprise Agreement. That is all that I have been instructed to address the Commission on and assist the Commission in making a determination as to whether it should be excised from the award or not. So, if it is convenient to the Commission to deal with that perhaps early on in the proceedings, that would certainly be appreciated.

PN70

THE SENIOR DEPUTY PRESIDENT: Ms Ferrier, that raises a question in my mind. It appears that at least one other party would have a preferred position of consigning the Fed Ex appendix to the deep.

PN71

MS FERRIER: Yes, your Honour.

PN72

THE SENIOR DEPUTY PRESIDENT: And that would fundamentally be likely to have the effect of bringing Fed Ex in under the general umbrella of the award.

PN73

MS FERRIER: Yes, your Honour.

PN74

THE SENIOR DEPUTY PRESIDENT: Were that to be the case, I now understand your position is that you don't wish to comment on any of the matters to be debated relevant to the content of the award proper.

PN75

MS FERRIER: That's right, your Honour.

PN76

THE SENIOR DEPUTY PRESIDENT: I'm just anxious that I extend to you that opportunity, should you wish to take it up.

PN77

MS FERRIER: Certainly, your Honour, and I am instructed that my client takes a view that the award will be simplified in accordance with the Award Simplification Principles and it will comply with the award which is handed down by the Commission, yes, subject only to arguing that the enterprise agreement should be retained and it is appropriate to be retained. I understand what you are saying, your Honour. Those are my instructions.

PN78

THE SENIOR DEPUTY PRESIDENT: Yes, thank you. In which case, given Ms Ferrier's submissions, it might be best if we dealt, first of all, with the issue of the Fed Ex appendix and then we would hear any evidence - I will hear evidence that might be provided by Mr Nucifora on any of the remaining items, before I hear evidence that might be called by Mr Rochfort. We will then proceed to hear any submissions on the 17 items in dispute. At that point, it might be best to work through the 17 items - or the remaining 16 - one by one and allow you both to comment on each of them. I make that suggestion of that outline on the understanding that none of the evidence, that is proposed to be called by either you, Mr Nucifora, nor indeed you, Mr Rochfort, goes to the question of whether the Fed Ex appendix ought to be retained. Is that a fair assumption?

PN79

MR NUCIFORA: None of the witness evidence, you are saying your Honour?

PN80

THE SENIOR DEPUTY PRESIDENT: Yes.

PN81

MR NUCIFORA: Yes, your Honour. Your Honour, I take it from your position that there isn't any scope for conciliation, at least in relation to the Fed Ex appendix?

PN82

THE SENIOR DEPUTY PRESIDENT: Well, Mr Nucifora, I've got to keep repeating, throughout 2001 and 2002 I have convened numerous conferences. My understanding is that the parties were also in agreement that they have exhausted the process of conciliation.

PN83

MR NUCIFORA: Yes, your Honour.

PN84

THE SENIOR DEPUTY PRESIDENT: We have got limited time available to us today. The experience of the last two years is that we have used up an abundance of time in a conciliation process that probably hasn't got us too far. Now, if you are wanting to tell me that something has changed so that we might be able to achieve some consensus on the issue of the Fed Ex appendix, then I'm open to be convinced but on the basis of what I have been told to date, I understood that we were here today to give effect to an arbitration.

PN85

MR NUCIFORA: I understand that, your Honour. We understand that today is the end game.

PN86

THE SENIOR DEPUTY PRESIDENT: Yes, it is.

PN87

MR NUCIFORA: And today the award is to be finalised. What I was proposing is only what we put in written submissions and, I understand, your Honour has gone through our submissions and Federal Express's, as well as Mr Rochfort and in that, inherent in our submissions, was some overlap and, I mean, I'm happy to go into that submission but we will see that, in fact, our position - because Federal Express came in late in the day - that, in fact, there is probably more overlap than we have been able to admit today. But in the written submissions it is quite clear what the core of our concerns are, both Federal Express and the ASU.

PN88

I am happy to go to formal submissions. I'm just suggesting that if there is anything in the submissions - written submissions - today that suggests that there is common ground, then are happy to explore that on the basis that today is the end game. Today the award gets finalised. We have no problem with that, your Honour.

PN89

THE SENIOR DEPUTY PRESIDENT: Very well, thank you. Ms Ferrier, do you want to open up the proceedings on the issue of Fed Ex?

PN90

MS FERRIER: I'm happy to, your Honour. My submissions will largely follow the written submissions which were filed in the Commission some weeks ago.

PN91

THE SENIOR DEPUTY PRESIDENT: You can take it as a given, as I said, that I have read those so you need only expand upon those issues that you wish to do so.

PN92

MS FERRIER: Thank you, Commissioner - your Honour - that will make my submissions much the shorter.

PN93

THE SENIOR DEPUTY PRESIDENT: No doubt you will pass on that message to your client and reduce your bill accordingly.

PN94

MS FERRIER: Of course, your Honour, I wouldn't dream of doing anything else. As has been put in our submissions, it is our submission that the Fed Ex Enterprise Agreement both can and should be retained as a part of the award. In coming into these proceedings, we agree with Mr Nucifora that our entrance into the proceedings was somewhat late in the day and I understand from your Honour that the removal of the enterprise agreement in the draft award was as much on the basis that the enterprise agreement was a redundant provision as much as anything else. Our submission put very clearly that those provisions in the enterprise agreement, whilst old, are not redundant and they certainly are used by Federal Express in order to roster nine hour shifts across seven days.

PN95

Now, in relation to our submissions, we say that there are two potential ways that the enterprise agreement could be characterised. The first is that it's an enterprise flexibility agreement made under the structural efficiency principles in the award as it then was back in 1992 or, in the alternative, it is simply an enterprise specific provision attached as an appendix to the award.

PN96

We say that the better interpretation is that it's an enterprise flexibility agreement and it contains all the hallmarks of such an agreement. It was negotiated both with the union and with the employees. It had support of the employees in the work place and was voted on accordingly and it was made under the Structural Efficiency Principles outlined in the award. If I could just take your Honour to section 113AB in the Work Place Relations Act, it is clear that whilst these provisions are perhaps an old fashioned way of doing things, in comparison to the certified agreement process that we now have in the current Act, the current Act still does contemplate and allow for the existence of such agreements to be made under provisions in awards which provide for enterprise flexibility within the work place.

PN97

I have noted in my submissions - I won't go over it again - that such an agreement was contemplated by Senior Deputy President Marsh in the Metals decision and she took the view that such agreements, that are enterprise flexibility agreements, should be retained as an agreement - as an appendix to the Metals Award. We say that the Fed Ex appendix falls squarely within that category so also should be retained as an appendix.

PN98

I have set out, at paragraph 6, how it is that Fed Ex continues to use the Enterprise Agreement and also why it is necessary and desirable to retain that appendix, both from the point of view of employers and employees. On that front I would note, once again, that the agreement did have unanimous support of the work place when it was brought in and it was the end of a process, which Mr Rochfort, no doubt, would have more history on than I do of a fairly long and arduous process with the union at the time to get his agreement up. We say that to excise it as part of the Award Simplification Process, such a bargain that was made between the parties and the employees in the context of, you know, negotiations and trade-offs, really would have the effect of undoing a genuine enterprise agreement, which would not really be in accordance with the objects of the Act.

PN99

Now, if we are wrong in saying that the agreement is an enterprise flexibility agreement, then the characterisation of the appendix falls to be an enterprise specific provision in a multi-employer award, and we note in our submissions that the Full Bench in the award implication decision said that as a general rule, such enterprise specific provisions shouldn't be retained in awards. That general principle goes tempered by Senior Deputy President Marsh's expansion on that in the Metals decision to say that, well, that is certainly the prima facie position but we need also to take account of the possibility that entitlements might be removed or other unintended effects might - it might have other unintended effects to remove such provisions. We say that that is certainly the case in this instance; the removal of the appendix would essentially remove the ability of Fed Ex to roster employees in such a way that it has been doing for the last 12 years and has the general support of employees.

PN100

We also would point out that there are other entitlements within the award which continue to exist - I'm sorry - other entitlements within the appendix of employees that if the appendix were removed, those entitlements would be removed. I won't go into any more detail about the enterprise specific provision because I think our submissions set out our position quite clearly in that regard. We just briefly referred in our submissions in relation to this issue of special consent provisions because they are a concept that was used and referred to in the Work Place Relations and Other Legislation Amendment Act. It may or may not be the case that the Fed Ex Enterprise Agreement could be characterised as a special consent provision. What we say is that either way, it really doesn't weigh much in the consideration as to whether the Fed Ex Enterprise Agreement should be removed.

PN101

Finally, in relation to the appendix, we note that possibly as a function that it was drafted some time ago, there are some provisions which, the Commission may take the view, deal with or prescribe unnecessary detail or also refer to issues which are really no longer current. For example, at clause 4 of the appendix B, talking about the National Wage Case decision in relation to in August 1989, these kinds of provisions certainly could be removed from the appendix. It would also certainly be the case that the appendix might need some redrafting just to lock in appropriately with the new award which is ultimately handed down by the Commission. That is a task that we would undertake both to remove those provisions which are either not allowable, just suffering from old age or prescribe unnecessary detail and we would also redraft the enterprise agreement so that it accords with plain English principles and sits in well with the redraft of award.

PN102

Now, just in relation to the submissions put by Mr Nucifora in relation to this agreement, it is my understanding that he is of the view that - - -

PN103

THE SENIOR DEPUTY PRESIDENT: Just before you go into that, I would propose to allow you the opportunity to respond to any submissions put by Mr Nucifora.

PN104

MS FERRIER: Perhaps then I'll just wait for those.

PN105

THE SENIOR DEPUTY PRESIDENT: And indeed, any put by Mr Rochfort.

PN106

MS FERRIER: Certainly. Well, then, rather than pre-empting those submissions I might just wait and actually hear them. Those are really our submissions, unless the Commission has any questions or matters which it wishes to raise.

PN107

THE SENIOR DEPUTY PRESIDENT: Yes, there are a couple of questions please, Ms Ferrier. The first - and they are not in any particular order - the first question I have is that in the latter portion of your submission, you have addressed the question of alibility of individual clauses.

PN108

MS FERRIER: Yes.

PN109

THE SENIOR DEPUTY PRESIDENT: Appendix B is characterised throughout as an agreement.

PN110

MS FERRIER: Yes.

PN111

THE SENIOR DEPUTY PRESIDENT: And in that respect, I'm a little intrigued as to how you would propose to go about retaining the character of an agreement which, you say, exists when or if the other side, or the other party to that agreement, doesn't want to remain a party?

PN112

MS FERRIER: Yes, your Honour - - -

PN113

THE SENIOR DEPUTY PRESIDENT: And I'm just wondering whether you might address me on that particular issue?

PN114

MS FERRIER: Certainly, and I think that tension arises, your Honour, through the difficulty which arises in having an agreed position which is then made a part of the award. This agreement, whilst it is characterised and is indeed an enterprise agreement, was inserted by the Commission - by Commissioner Cross - as a variation to the award. So, in that regard, whilst it retains its character as an enterprise agreement, an agreement which was made by employees, it is still a part of the award and a variation to the award which was made in 1992.

PN115

So, in that regard, even if it is the case that the other party to the award, the Australian Services Union, wanted to say, well, we no longer wish to be a party to the award - to the agreement - or we no longer agree with these provisions, these provisions are still part of the award and it is no different for an employer who has, through conciliation, come to an agreement with a union in relation to an award and the award is then made. It is not for the employer or for anyone else to say, well, I no longer wish to be a party to that award even though I agreed to it some time ago. We say that it's a similar situation in this; that whilst it was, at the time, an agreement made at enterprise level, it has taken on the character or taken on the role as being part of the award.

PN116

THE SENIOR DEPUTY PRESIDENT: So does it follow then, if I'm convinced as to the retention of appendix B, that you are suggesting to me that, in the redrafting of appendix B so as to comply with the requirements of the WROLA Act, I should delete the reference to appendix B as an agreement and simply regard it as a schedule? In that regard I can refer you to Senior Deputy President Marsh's decision in relation to the Metal Industry Award where, effectively, she was dealing with enterprise specific schedules, in particular, schedule C to that award, rather than necessarily agreements. It might be a question of nomenclature but it seems to me to be significant.

PN117

MS FERRIER: Yes, your Honour. Unfortunately I have culled out my copy of SPD Marsh's decision but, from memory, there were actually two types of enterprise specific provisions. One type she dealt with as enterprise specific provisions - and I think at the time that the decision was made the company hadn't been represented and there was some agreement made in relation to a transitional period.

PN118

THE SENIOR DEPUTY PRESIDENT: Yes, indeed.

PN119

MS FERRIER: Where the company could then come back and say why it was necessary to retain those. There was another enterprise agreement which she referred to and it was - I can't remember the name of it - but she specifically said, no, this is an enterprise flexibility agreement and pursuant to section 113B, it should be retained. So, there was a dichotomy in her Honour's decision about simply enterprise specific provisions which the companies then had to go away and say why, your Honour, we need these and there was also another agreement which her Honour specifically said was an enterprise flexibility agreement and should be retained as a schedule. So there is a difference there, your Honour, and I think the difficulty lies in - well, one of the difficulties lies in how this appendix should actually be characterised. It was an agreement which was reached with employees pursuant to the Structural Efficiency Principles set out in the award.

PN120

The way the matters fell in the end was that the ASU or the FCU wouldn't consent to it being made as part of the award and I can hand up to your Honour the decision of Commissioner Cross in that regard. Commissioner Cross eventually said that the union was unreasonably withholding - - -

PN121

MR NUCIFORA: Sorry, your Honour, I just want to ask Ms Ferrier, was that print K2037?

PN122

MS FERRIER: Well, I'll just tell you in a moment. Yes, it was print K2037, a decision of Commissioner Cross on 7 April 1992 and I refer to this in our submissions as well. He says that:

PN123

The approval of an enterprise agreement arising out of the structural efficiency principle ...(reads)... Industry Consolidated Award.

PN124

The Commissioner then goes on to outline just a little bit of background but in the end, the Commissioner says that, whilst the FCU was objecting to the award variation being made, the Commissioner took the view that that objection, or the withholding of agreement, was unreasonable by the FCU and so he accordingly varied the award. Would you like a copy of that decision, your Honour?

PN125

THE SENIOR DEPUTY PRESIDENT: Yes, thank you. The second question that I have, Ms Ferrier, is a very simple one: do Fed Ex have a certified agreement that sits above that appendix?

PN126

MS FERRIER: Not in relation to these employees, your Honour.

PN127

THE SENIOR DEPUTY PRESIDENT: Thank you. And finally, do your instructions go to the extent that you can tell me what impact the cancellation of the appendix would have on Fed Ex?

PN128

FERRIER: Certainly, your Honour, and these are referred to briefly in our submissions.

PN129

THE SENIOR DEPUTY PRESIDENT: Yes, they are.

PN130

MS FERRIER: Essentially - and if I'm straying into evidence from the Bar Table that either of my friends object to, I'm sure they will object.

PN131

MR NUCIFORA: I have no doubt that they will object if you err in that regard.

PN132

MS FERRIER: Certainly. Fed Ex is an international freight forwarding company. In Australia, the main source of its business is inbound freight, so freight coming from overseas. Fed Ex has its own plane which comes in and also travels around the world, but there are certain days on which there are main deliveries which take place. One of those days is Saturdays, you know, and so a huge amount of freight is, essentially, dumped on Fed Ex's doorstep on a Saturday. The need to be able to roster ordinary hours across the weekend is particularly acute because on the Saturday, prior to that flight being delivered, a lot of preparation needs to go on, in relation to the custom clearing and the paperwork that's required to receive that flight, and then on Sunday it is absolutely essential to have people on board to be able to clear the flight so it's in a position on the Monday to, essentially, send the couriers out with those packages.

PN133

If it was the case that Fed Ex couldn't roster ordinary hours across the Saturday and Sunday, what would happen would be that a lot of couriers would turn up to work on Monday, the flight wouldn't be cleared, so they would essentially for the first half day have nothing to do. So it would significantly impact upon Fed Ex's ability to process and clear those flights in a timely manner.

PN134

THE SENIOR DEPUTY PRESIDENT: Would it necessitate employees being required to work regularly over seven days of the week, notwithstanding that two of those days would be paid as overtime days?

PN135

MS FERRIER: I'm sorry, your Honour, could you just ask that question again?

PN136

THE SENIOR DEPUTY PRESIDENT: Would the abolition of appendix B necessitate Fed Ex working its employees over seven days of the week with any degree of regularity, notwithstanding that obviously in that case the Saturday and Sunday would be paid as overtime days?

PN137

MS FERRIER: My instructions in relation to that issue go to this: Fed Ex would have to look very seriously at whether it could maintain a profitable margin in the context of not being able to roster on ordinary hours on the Saturday and the Sunday. It may well be - at this point the plane comes in when the plane comes in and the Australian operation, being fairly small fish in Fed Ex world, doesn't have much say over when it comes in. There would be significant issues with profitability in having to roster people on Saturday and Sunday and pay overtime rates and so whether, you know, the operation could ultimately sustain that attack on its profitability, is something that would need to be considered and I don't - I'm not instructed that the numbers have actually been done on that issue.

PN138

THE SENIOR DEPUTY PRESIDENT: And a final question: how many employees do Fed Ex engage pursuant to this agreement - or this appendix?

PN139

MS FERRIER: If I can just check my file, Commissioner? I won't be a moment. My instructions are, Commissioner, that it's approximately 150 employees. Not all of those are required to work - or asked to work the nine and half hour four day week.

PN140

THE SENIOR DEPUTY PRESIDENT: Thank you.

PN141

MS FERRIER: If I could just mention to your Honour - it has just come into my mind - that we did have some discussion with the union and as a fall back position, I understand that the union would be agreeable to a transitional period of approximately 12 months for the appendix - if you were of the view that the appendix should be removed then, I guess, our secondary position would be of a transitional period of approximately 12 months so that Fed Ex could arrange itself accordingly with that window and that's something, I understand, that the union would be agreeable to but that's certainly our second position though, your Honour.

PN142

THE SENIOR DEPUTY PRESIDENT: Yes, thank you, Ms Ferrier.

PN143

MS FERRIER: Thank you, your Honour.

PN144

THE SENIOR DEPUTY PRESIDENT: Mr Nucifora?

PN145

MR NUCIFORA: Thank you, your Honour. I can confirm, in fact, the last bit of Ms Ferrier's submissions.

PN146

THE SENIOR DEPUTY PRESIDENT: That is the 12 month transition period?

PN147

MR NUCIFORA: Yes, because what we would say, in terms of a primary submission, of Federal Express, is that this has the character of an agreement - and I can take you to that - but what I was trying to get to earlier is this position where neither side has provided factual evidence, although I'm not disputing some of the assertions that Ms Ferrier has made in relation to the number of employees and in terms of what might be lost if this appendix were removed and nothing else happened. But her proposition - and we only saw it for the first time when it came up in her submission, so I didn't cover it in our submissions - going to a transitional period of 12 months where in that time the company and employees and the union - we do have members there although we don't have large numbers of members - we would suggest that in terms of what occurs at the job, whatever it is - because, as I say, I don't know if any of us have got the details that we can provide in evidence today - but whatever the arrangement is now as a result of appendix B, that that be preserved within that 12 months.

PN148

There is some precedent for that, your Honour, in a fashion. I have referred, in our submissions, in item one to a decision in the ACT Clerks Award 1998, print number - and I apologise, this wasn't in the copy that I sent to you and it was an oversight - but that's Q5116. It is the decision of Commissioner Larkin in August 1998 in relation to the Clerks ACT Award where she had a similar - - -

PN149

THE SENIOR DEPUTY PRESIDENT: It is actually in the copy that I have got.

PN150

MR NUCIFORA: Thanks, your Honour. In that, she does refer to an appendix and in her decision she mentions that she is not prepared to remove what was called an exemptions appendix - but it's not the same exemptions that have been, of course, so contentious in this award - it was an exemptions appendix that went to the hours of work and other provisions specific to the particular organisations in the ACT and she said that whilst she wasn't prepared to move the appendix at that point:

PN151

...the parties are to report back on a date fixed in November 1998 on progress in relation to the removal of the exemption provisions and the rationalisation of a classification structure to the award.

PN152

So, what ended up happening was all those exemption provisions were outdated, in fact, the employers - we had proposed a similar arrangement where we would seek to reach agreement however we could within a particular period of time and, as we know with the Clerks ACT Award, there no longer is an appendix with those exemptions and exemptions, we would say, are similar to appendix B here that go to specific requirements at particular enterprises and this case it is one employer, it is characterised as an agreement, it refers to an agreement with employees, not with the union, it does have a term forcing an expiry date. We know from clause 6 there is a term of two years. It really takes on the character of an agreement - an enterprise flexibility agreement. Of course, at the time, we didn't have enterprise bargaining as we now know it and, of course, it would have probably been, had it occurred now, been a section 170LK non-union collective agreement.

PN153

We suggest that, in keeping with the principles that you have put in your decision drafting - drafting, if you like, of the simplified award, that there should be no loss to employees - and we are really not sure whether there would be any loss in terms of employee entitles should this be removed - and there should be no added labour costs to the employer and the 12 month transitional period, we say - it comes up towards the end of Ms Ferrier's submissions - would be sufficient to allow time for the employer to, in fact, ensure that they could reorganise these arrangements that otherwise employees have agreed to.

PN154

Your Honour, I also want to refer to the very important award simplification decision and its reference in that decision to application of appendix A and in that, on page 9 of print P97500, it has been stated:

PN155

This also is a clause upon which the parties should confer. It is undesirable that the award ...(reads)... to whom the appendix applies.

PN156

The important principle in all this is, your Honour, we say that there should be no detriment to employees and no detriment to the employer and that transitional period - and I'm just trying to think of how that might be referred to in a decision as one that is clearly recognised formally by the Commission, that appendix B in terms of alibility would continue to apply for that 12 month period and, of course, the employer and, if you like, parties to the award - that would particularly include ourselves - would seek to ensure that the rights that come up under that appendix B are maintained.

PN157

Your Honour, I mentioned earlier that some of these provisions are actually not being used, as we understand it, but others are but we are not certain about what entitlements that arise but certainly one thing we are saying is that we are not seeking to remove the legal effect of appendix B, certainly within that 12 month period and it is consistent with the decision of Commissioner Larkin in relation to the Clerks ACT Award in print Q5116 and I imagine that the Commissioner was considering the award simplification decision in P7500. I understand that there was the later decision of Senior Deputy President Marsh in relation to appendices that applied to enterprises - I think it was schedule F in the Metal Industry Award - and that arose as a result of some genuine concern about loss of entitlements for employees. We saw we are not aware, and neither side have provided any factual evidence, that as a result of going through a transitional phase, there will be any loss of entitlement, in fact, any change to the current shift arrangements that occur at Federal Express.

PN158

Of course, there are no other - since that appendix went in, of course, it was opposed by the union but agreed to by the majority of employees - there are no other, as you are aware, your Honour, certified agreements since then and we say that the proposition that is a secondary submission of Federal Express and now, we would say, or our primary submission, although not clear from the letter - the submissions - that we put to you on 11 February, we say that that should be what occurs and it is the safest way to go. If your Honour pleases.

PN159

THE SENIOR DEPUTY PRESIDENT: Mr Nucifora, I've got five questions for you. Given the, if you like, uncertain status of appendix B, if I were to refer to clause 1 of that appendix, as you have noted, it is an agreement that was entered between Federal Express and all the employees at the company, can I take it that the submission that you are putting to me reflects the views of your members employed by Federal Express?

PN160

MR NUCIFORA: I can't confirm that, your Honour. It's more a position of preserving what is there, in practical terms, now.

PN161

THE SENIOR DEPUTY PRESIDENT: I see so it's a general statement - or submission - based on general principles?

PN162

MR NUCIFORA: On general principles, yes.

PN163

THE SENIOR DEPUTY PRESIDENT: Thank you. Now, can I then refer you to clause 5 of the appendix which grants leave to the parties to apply with respect to matters arising from the October 1991 National Wage Case. Can you tell me whether the union has ever sought to exercise that leave so as to vary the wages or classification schedule?

PN164

MR NUCIFORA: No, your Honour, I'm not aware of that.

PN165

THE SENIOR DEPUTY PRESIDENT: Thank you. Now, as I understand both the submission you have just given me and the written submission, the ASUs position is that the appendix, in its entirety, ought to be removed.

PN166

MR NUCIFORA: Yes, your Honour.

PN167

THE SENIOR DEPUTY PRESIDENT: It is not just a case of removing some components of the appendix.

PN168

MR NUCIFORA: That's right, your Honour.

PN169

THE SENIOR DEPUTY PRESIDENT: That gives rise to a question relating to the issue of overtime and what do you say to me about the possibility that the removal of the capacity to work ordinary hours over a weekend, might give rise to a call on employees for overtime that might, in fact, run counter to the position adopted by the Full Commission in the reasonable hours test case? That is, if employees are required to work Monday to Friday and then are asked to work regularly on Saturday and Sunday, is it conceivable that a seven day week might in fact disadvantage employees pursuant to that reasonable hours test case decision?

PN170

MR NUCIFORA: It may, your Honour. I hadn't contemplated, to be honest, the reasonable hours test case in terms of - we had, I must say, in terms of the hours clause and the general provisions. We were probably trying to get to some common ground in terms of preserving what was there, whether we liked it or not, and in terms of whether the employees now sought to exercise, in that case, a test case decision, we hadn't put our mind to that.

PN171

What we were seeking to do was to stick to the award simplification principles which you have referred to, your Honour, in relation to no loss of employee entitlement and no extra labour costs and that 12 months transitional period allows, of course, the employer to deal with that issue. Now, we have members there and I think, as I've just been informed, that our members would not be opposed to the proposition - the general proposition - that I've put that, in fact, that be removed and that it be preserved for a period of 12 months of a transitional phase.

PN172

THE SENIOR DEPUTY PRESIDENT: Yes, but you see - - -

PN173

MR NUCIFORA: I'm not sure at this stage how that should be drafted to ensure - how that should be determined so as to ensure that for the 12 months that's what actually happened.

PN174

THE SENIOR DEPUTY PRESIDENT: Yes, well, that is a drafting issue.

PN175

MR NUCIFORA: Yes.

PN176

THE SENIOR DEPUTY PRESIDENT: What worries me more is the concept underpinning it. You see, if we were to preserve the appendix for a period of 12 months as a transition period and if nothing happened during that 12 months, I'm concerned at the potential for both the employer to be disadvantaged at the end of that 12 month period by virtue of higher labour costs but also for employees to be disadvantaged in terms of the loss of two days off, in effect, and the potential for further disputation, where there isn't any disputation at the present time, relative to reasonable working hours.

PN177

MR NUCIFORA: Could I make a - - -

PN178

THE SENIOR DEPUTY PRESIDENT: Now, that's the issue upon which I invite you to comment.

PN179

MR NUCIFORA: Yes, your Honour, I just thought that - and I'm unsure of the section, not having used it before - but you might - - -

PN180

THE SENIOR DEPUTY PRESIDENT: It's the Act.

PN181

MR NUCIFORA: Sorry, but in the Act, a section of the Act.

PN182

THE SENIOR DEPUTY PRESIDENT: I see, thank you.

PN183

MR NUCIFORA: And it goes to arbitrating where - I mean, we are not suggesting in your decision, or in any order that you make, that you should force the parties to reach agreement in that 12 months. There is a transitional phase, but there might be something at the end of that 12 months - dare I say that something from this award drags on for another 12 months - there is a process that where, if all of a sudden the time is up, 12 months from today, for example, that in fact the Commission intervenes if the parties still haven't sorted this out and in fact arbitrates on the merits of the case because neither of the parties today - - -

PN184

THE SENIOR DEPUTY PRESIDENT: I see, so what - can I put that in my word?

PN185

MR NUCIFORA: I forgot the section of the Act.

PN186

THE SENIOR DEPUTY PRESIDENT: So leaving aside the question of searching through that Act in search of a relevant section, if I were to put what I understand you are saying in my words, it is to the effect that one option would be to indicate that appendix B has a life of only 12 months and at the end of that 12 month period appendix B is to be removed from the award but to grant leave to either party to seek that appendix B might continue, depending on what occurs during that 12 month period. Is that what you are saying to me?

PN187

MR NUCIFORA: I'm sorry, your Honour, I just missed - when you said continued, at the end of that 12 months?

PN188

THE SENIOR DEPUTY PRESIDENT: At the end of that 12 month period, leave would be granted to both parties to seek to argue that appendix B should be retained in the award in some form?

PN189

MR NUCIFORA: That's a slightly different position but the same effect.

PN190

THE SENIOR DEPUTY PRESIDENT: I am simply asking the question?

PN191

MR NUCIFORA: Well, I think it's - is it 170MX is an arbitrated - I'm not seeking the Commission force the parties to reach agreement in 12 months but if they don't, then the parties be directed to have discussions. Then in fact the Commission will intervene and at this stage, I know what you put - - -

PN192

THE SENIOR DEPUTY PRESIDENT: I see. You are suggesting to me that 170MX allows for an arbitration on this sort of issue, are you? I must say, that is not the construction that I could comfortably put on 170MX.

PN193

MR NUCIFORA: Well, I guess what we are saying is that ultimately the appendix B should come out and that parties ought be encouraged to have discussions - and by the parties, I mean the union and or, of course, employees collectively - I have to say that the majority are not union members so I wouldn't over state the discussions - but discussions with the union and or employees about reaching agreement in relation to the removal of appendix B and that, we would say, ultimately should be an outcome from award simplification.

PN194

At the end of that, we don't have any problem with the Commission, in nothing has happened, intervening and saying, well, we have to deal with the merits of this case and it may be - I'm just trying to think how that would occur - but I think there should be some discipline on the parties to try and sort it out one way or the other in that time, both on Federal Express and the ASU and employees to sort this out because, as a result of award simplification, it can't be in the award any more after this 12 months but the Commission isn't going to allow this to drag on like this award has in other respects - drag on after that date. By that date it's removed and we would hope there is no loss of entitlement and no increase in labour costs.

PN195

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Nucifora. Mr Rochfort?

PN196

MR ROCHFORT: Thank you, your Honour. Our position is, as simply stated, your Honour, in the note that I've sent. The employers that I - - -

PN197

THE SENIOR DEPUTY PRESIDENT: Perhaps you could, just to ensure that we are working off the same note - you have sent me a multiplicity of documents.

PN198

MR ROCHFORT: Yes, our latest position in that - which was determined as recently as last Thursday - was that in an advice to you - a copy to you of 7 March.

PN199

THE SENIOR DEPUTY PRESIDENT: This is the 7 March document? Thank you.

PN200

MR ROCHFORT: And I apologise that this has happened at the last minute but, in fact, negotiations were taking place up until the last minute and your Honour will see from the file that there has been a great deal of resistance to change. Even the Federal Express Agreement itself was opposed by the union but nevertheless, that's another story. The situation is that the employers that I represent believe that the appendix should be deleted and it does so on this basis: that the appendix itself was somewhat ground breaking at the time when it was entered into. It sought to identify, in relation to Federal Express, issues which were specific to the industry but voiced through that one company. Your Honour would be aware from the file that this award was made in 1992 as a result of a splitting of the old award.

PN201

THE SENIOR DEPUTY PRESIDENT: Yes, I am.

PN202

MR ROCHFORT: And creating an award which was intended to be specific to the Air Freight Forwarding and Customs Clearing Industry and, so to speak, the Federal Express Agreement broke some ground and by way of identifying particular aspects of the operations in the Air Freight Forwarding Industry which should be described and provided for uniquely.

PN203

It was interesting your Honour raised a question about clause 5. Your Honour would probably be aware that I was involved in that and that I was the representative for Federal Express. The reason for clause 5 being as it was, is the company put up rates of pay which the Commission rejected. Commissioner Cross refused to endorse the rates of pay. Of course, if that agreement was now done or entered into today, it would be necessary, not only to have rates of pay there applicable to the agreement, but that those rates of pay would satisfy the no disadvantage test - and that's a little bit of history in relation to clause 5 but I won't try to go into great detail.

PN204

I agreed with a lot of what Mr Nucifora said, apart from his comments on section MX. I don't think that has anything to do with it. I think that relates to something completely different. But I put this to your Honour: that the intention behind these negotiations for the award was to have incorporated into the new award the provisions in Federal Express document which were applicable across the industry. In other words, to include in there exactly what your Honour was talking about to Mr Nucifora in relation to working hours - to provide for working hours - and you will see extensively in our submissions in relation to the issue of the award itself, in our commentary we have incorporated some of what the Commission - the Full Bench - has said in relation to working hours, being a justification of our position.

PN205

So, it's quite wrong to say that many of the benefits that Federal Express has, or it's employees have, in the agreement are not going to be carried across. In paragraph 6 my friend, Ms Ferrier, says that Federal Express will lose some benefits. Well, it won't because in relation to a lot of the matters which are important, those benefits will be transferred across and they will be transferred across with a recognition with the appropriate rates of pay having regard to those benefits being in the award and it's significant, your Honour, that Federal Express have made no submissions at all. They will be a respondent to the award but have made no submissions at all in relation to what should be in there and should not be in there. They are being quiet on the matter so it would assumed that they accept that the changes to the award are changes which they implicitly agree with.

PN206

In regard to clause 6, just briefly, unlike other respondents to the award - this is the submission - Fed Ex is primarily an inbound operation and relies upon inbound business, well, that's not unlike other respondents to the award, that is fairly common place. In the material prepared by Ms Parrott there is a preponderance of work which is identified as applying to inbound business.

PN207

Fed Ex's operation is a seven day operation. Well, so to is the operation of many of the large respondents in the award. The award covers, your Honour, very large companies and very small companies. UPS, for example, is a respondent to the award - or will be - and it is one of the largest operations in the world, far larger than Federal Express, and it has most certainly a seven day operation, as do many of the other companies but the smaller companies, the little one man customs clearing businesses who are also covered by the award, possibly do not operate on a seven day basis but it's a predication of the award. Fed Ex needs to roster individuals on Saturday to prepare for the flight and on Sunday to clear and sort the flight. Well, so too do any number of companies. Emery, for example - -

PN208

THE SENIOR DEPUTY PRESIDENT: Mr Rochfort, can I interrupt you? I just want to clarify my understanding of the position you are putting to me and, as I understand it, there are two components to the position that you are putting to me. The first is that the changes you propose to the award would, in your view, eliminate both the need for and any impact of the deletion of the appendix?

PN209

MR ROCHFORT: Yes.

PN210

THE SENIOR DEPUTY PRESIDENT: The second issue, which I particularly want to understand, is that in the event that there were no changes made to the award relative to working hours, should I understand that you would be saying that the existing appendix establishes some employment benefits for Fed Ex which unfairly advantage Fed Ex relative to other employers covered by the award?

PN211

MR ROCHFORT: That's what I'm saying.

PN212

THE SENIOR DEPUTY PRESIDENT: Thank you.

PN213

MR ROCHFORT: And that's been the predication in the negotiations; that Fed Ex, so to speak, has been the stalking horse. There are provisions in that agreement which have proven to be satisfactory over ten years and should now be recognised as being industry standards.

PN214

Now, if there are other matters in there that are not seen as industry standards - because not everything - Federal Express is not going over holus bolus - but if there are other matters there that need addressing, well, they can be addressed by way of a certified agreement under the current provisions. That is basically what we are saying - as there will be other companies who will be seeking to enter into agreements with their employees and, if applicable, the union, in relation to matters that are not addressed in the award. You can't cover everything, particularly, your Honour, when you have such a diverse respondency as this award has; very large companies down to, as I've said, the mum and dad type operations who are your customs brokers.

PN215

All companies are subject to Australian Quarantine Inspection Services and Australian customs issues, and they are quite onerous these days. You have to clear - once a plane lands you have to clear that cargo under customs regulations within four hours. Now, that requires - it's not so bad in Sydney where your last flight is 11 o'clock, but in Melbourne it can require someone to have to work in the wee hours of the morning because the flight just happens to arrive at, say, midnight. But that's the nature of the industry. That's the ordinary work which is performed in the industry and Ms Parrott has some information to give to the Commission in that regard.

PN216

The concept of a 9.5 hour shift is one which is in the award and the award, as I understand your Honour's draft in particular, recognises that employees may wish to enter into particular arrangements for the working of ordinary hours. We are going to submit some just further tinkering with that but basically the employers agree with your Honour's draft, subject to a bit of fine tuning, and that will be available for Federal Express in the document and everyone will be, so to speak, working of the same playing field.

PN217

The position of the employers is that the document should be - or that the appendix should be deleted. It is no longer appropriate and the measures that we have identified and put into the award - and there hasn't been a word from Federal Express in relation to saying, oh, yes, but something else should be in the awards, so we assume they are satisfied with the award changes that have been sought. Well, that should be the mainstay of those provisions and if there is anything else, well, there is a current mechanism available to Federal Express, as it is available to everyone else in the industry - or the other respondents - to seek to reach agreement either under section 170LK or 170LM with employees and or the union to address those matters. Our submission is as brief as that.

PN218

THE SENIOR DEPUTY PRESIDENT: Thank you.

PN219

MR ROCHFORT: Unless your Honour, of course, has any questions to ask me.

PN220

THE SENIOR DEPUTY PRESIDENT: No, thank you, Mr Rochfort.

PN221

MR ROCHFORT: Thanks.

PN222

THE SENIOR DEPUTY PRESIDENT: Ms Ferrier?

PN223

MS FERRIER: Your Honour, if I could just make a few submissions in reply, your Honour? The first goes to the issue that Mr Rochfort has raised in relation to Fed Ex's decision not to take a more robust involvement, if I could call it that, in relation to the larger award simplification issues and his submission that, if I understand it rightly, because Fed Ex hasn't said anything in relation to anything else, he assumes that Fed Ex is satisfied with what is being put forward. Put forward by whom, I'm not sure.

PN224

I thought I made our position clear in relation to this that Federal Express understands that the award will be simplified in accordance with the WROLA Act and in accordance with Award Simplification Principles. It is quite clear in your decision, your Honour, that in varying the award as a part of the Award Simplification Process, that is not a process of negotiating different outcomes or different entitlements where those entitlements don't need to be changed as a result of the Award Simplification Process. That is our understanding of the process and that will be undertaken by the Commission and I would dispute any indication that Fed Ex's non-involvement in the larger issues should reflect one way or another in relation to our submissions as to the removal, or otherwise, of the appendix. If I could just make our position clear on that.

PN225

Now, just in relation to the submissions of Mr Nucifora, he referred to the decision in the ACT Clerks Award, a decision of Commissioner Larkin. He also referred to, or he also made mention of the fact, that a lot of those provisions were outdated, or a lot of the agreements were outdated. We say that, subject to a few very small issues, the provisions in the Federal Express appendix are not outdated so it's clearly distinguishable on that basis.

PN226

In relation to the transitional phase, as I said, I did put that as a secondary position if your Honour was of the view that the appendix should be removed. Now, my friend, Mr Nucifora, has said that, you know, this is a way that we can make sure everything is preserved, that employee entitlements are preserved, that there is no added cost impost to the employer but, your Honour, you hit the nail squarely on the head in saying, well, that's - you know, what if nothing happens? We say that the transitional period is something that will work assuming that some other instrument or process can be put in place to address a removal of those provisions. Who knows what those arrangements are that might be put in place. It may well be that the company determines that those employees who currently work four by 9.5 hour shifts get put on Monday to Friday 7.6 hour shifts and, you know, the weekend work is dealt with in another way. I don't know but this assumption that it can just be easily addressed by putting in place some other instrument or some other arrangement is potentially a little bit glib, your Honour, particularly where arrangements and a suitable instrument, which works for the company and works for employees, is already in place.

PN227

In relation to your question to Mr Nucifora about the working of overtime on weekends, which may flow from a removal of the appendix, I would also add to that, your Honour, that - and I believe it's in our submissions, but if I could restate it - these employees have worked four days a week on 9 hour shifts for quite some time. It's an arrangement which it's trite to say persons have gotten used to and, no doubt, have organised their lives around the fact that they work four by 9 hour shifts each day[sic] and have three days off per week. The question - it really begs the question, your Honour, that why would that be changed? What is the value in changing that? And unless there is some necessity in removing the appendix because of the Award Simplification Process, we say it is really just upsetting the apple cart, as it were.

PN228

In relation to Mr Nucifora's suggestion about having some process of arbitration at the end of a 12 month period, we once again say that, well, my client has put in place this appendix to the award, it's the - it's put in place in the context of the industrial instruments and options which were in place at the time, it has already done that and it uses that appendix. We question why our client should be suppressed into arbitration, on a matter which is really already agreed, at the end of a 12 month period? It really doesn't seem to make sense. We agree with Mr Rochfort that the characterisation of the powers under section 170MK, which is the ability to arbitrate on termination of bargaining period, really don't assist in this concept. I appreciate that Mr Nucifora was acting on the hop though.

PN229

Now, just in relation to a couple of other of Mr Rochfort's submissions. In relation to Mr Rochfort's submissions in relation to the character of other employers in the industry and a reference to the research that Ms Parrott has done and will attest to, I might just say, as a matter of form, we haven't seen any of that material although it has been clear, from our submissions which we put on some weeks ago, that as a factual issue we said that we are different from other employers in the industry because of primarily inbound operation, but we weren't done the courtesy of seeing that documentation that Mr Rochfort now intends to rely upon.

PN230

In relation to the ability to transfer across benefits which Fed Ex is currently enjoying that will be, on Mr Rochfort's submissions, simply folded into the award, well, your Honour, if they are simply folded into the award then that's all very well but we are not convinced that they will be simply transferred into the award, we are not convinced that Mr Nucifora is - or we don't understand Mr Nucifora as saying that he consents to the Fed Ex provisions, for want of a better word, being transferred into the award. So if what Mr Rochfort is pursuing is a section 113 application in relation to his clients, we have no view on that either way but it is not really a sensible argument to say that the Fed Ex appendix should be removed because I'm trying to get all those benefits lined up for my other clients.

PN231

Finally - and I guess it's just another way of saying a similar thing - but Mr Rochfort has made the submission that, you know, other companies have the same needs to roster, et cetera, in the way that Fed Ex does. Well, that may well be the case but those companies can pursue that need in the way that they wish to pursue them, whether it's through an award variation, whether it's through an agreement, whether it's by paying prohibitive amounts of overtime, it's up to them to make their decisions. Fed Ex made its decision in relation to this ten years ago where it pursued an award variation through an enterprise agreement which became appendix B to the award and we say that that initiative of Fed Ex should be retained in the simplified award. Those are my submissions, your Honour.

PN232

THE SENIOR DEPUTY PRESIDENT: Thank you, Ms Ferrier. Now, Ms Ferrier, I propose not to move to the evidence to be brought by both Mr Nucifora and Mr Rochfort. It is entirely a matter for your discretion as to whether you wish to remain in the Court Room but, should you wish to leave, I am more than happy to excuse you.

PN233

MS FERRIER: Thank you, your Honour. If I could just ask, through you, in relation to the evidence that is going to be brought by Mr Rochfort, if you are then going to rely on that evidence in relation to his submissions that the appendix should be removed because, if that is the case, I would probably want to stay.

PN234

THE SENIOR DEPUTY PRESIDENT: Mr Rochfort?

PN235

MR ROCHFORT: I think your Honour made it clear at the start that that evidence would not be used in relation to Federal Express. It is evidence in relation to the award. What I have to say about Federal Express going into the award has been said and the answer to that is no I won't be - I won't mention their name, promise

PN236

THE SENIOR DEPUTY PRESIDENT: Very well, thank you, Mr Rochfort. There you have it.

PN237

MS FERRIER: Thank you, your Honour.

PN238

MR NUCIFORA: Sorry, your Honour, just a couple of questions I wanted to raise while Ms Ferrier is here, in relation to what actually applies now. I know we have no evidence in this material on what actually applies in terms of what is different at Federal Express and other employers respondent to the award. That is, I understand from your submissions, there is the four by 9.5 hour roster and there are shift allowances, more attractive shift allowances, and junior rates that are different. Apart from what is in the draft there, what is actually applying that is different at Federal Express, as compared to the other employer respondents? I think the 9.5 hour shifts is the key one, is what I was trying to confirm.

PN239

THE SENIOR DEPUTY PRESIDENT: I'm somewhat at a loss. You have had a couple of years to ask these questions.

PN240

MR NUCIFORA: Sorry?

PN241

THE SENIOR DEPUTY PRESIDENT: You have had a couple of years to ask these questions.

PN242

MR NUCIFORA: With Federal Express?

PN243

THE SENIOR DEPUTY PRESIDENT: Yes.

PN244

MR NUCIFORA: Well, it's only recently we've been able to talk directly with Federal Express.

PN245

THE SENIOR DEPUTY PRESIDENT: Yes, but you see, both you and Mr Rochfort were proposing to me some time ago that the Federal Express appendix be deleted.

PN246

MR NUCIFORA: Yes, yes, that's right, your Honour, yes.

PN247

THE SENIOR DEPUTY PRESIDENT: Were it that you had any questions of Federal Express, I'm a little bemused as to why it is that they weren't raised at that time.

PN248

MR NUCIFORA: Yes, well, it's only - they were raised. It's only clear now what is different and actually what applies at Federal Express, as opposed to what is in the appendix.

PN249

THE SENIOR DEPUTY PRESIDENT: Yes, well, how does the answer to those questions impact on the issues on which I'm being asked to arbitrate?

PN250

MR NUCIFORA: Well, they go to the question that you raised about competitiveness between Federal Express and other employers. What is there? Is thee an advantage that Federal Express has?

PN251

THE SENIOR DEPUTY PRESIDENT: So do you want another go at submissions on the issue?

PN252

MR NUCIFORA: No, your Honour, no it goes to submissions that have already been raised and we are responding to those submissions and we say that if there were any competitive advantage in relation to, for example, the 9.5 hour shifts, that there, in fact - that enterprise bargaining - the enterprise bargaining stream as we now know it - would mean that there would be a commensurate, if you like, quid pro quo wage increase and I think that is what has been referred to here. So I just wanted to make that clear in terms of competitiveness, that question, and respond to that question of competitiveness. I don't believe - I mean, at the end of the day, I believe that in fact there is no significant competitive advantage that Federal Express has as a result of what now applies and I see it as being the 9.5 hour shift.

PN253

I think there is also - sorry, there was the question of work on Saturday and Sunday but, once again, it goes back to a commensurate wage increase that they would get that they would not otherwise get under the award.

PN254

THE SENIOR DEPUTY PRESIDENT: Yes, I understand your submission, thank you. Now, Ms Ferrier, it is your call as to whether or not you wish to remain and enjoy the proceedings or whether you wish to leave.

PN255

MS FERRIER: I'll exit, if that's all right, thank you.

PN256

THE SENIOR DEPUTY PRESIDENT: Thank you. Now, Mr Nucifora, your evidence, perhaps it might be an opportune time to begin with that.

PN257

MR NUCIFORA: If I may, firstly, your Honour, table - or tender - as an exhibit a copy of our submissions that were handed in as we will be relying on what is in those submissions?

PN258

THE SENIOR DEPUTY PRESIDENT: Yes, well, it might be appropriate perhaps, before Ms Ferrier does leave the Commission, that I mark these various submissions for the record. I will mark the Fed Ex submission dated 14 February 2003 as Fed Ex 1.

EXHIBIT #FEDEX1 SUBMISSION DATED 14.2.03

PN259

I will mark the submission from the ASU dated 11 February 2003 which consists of five pages as ASU1.

EXHIBIT #ASU1 SUBMISSION DATED 11.2.03 OF FIVE PAGES

PN260

And I am very much in Mr Rochfort's hands because of the various different versions that I have and I propose to mark the submission of 7 March as IRA1.

EXHIBIT #IRA1 SUBMISSION DATED 7.3.03

PN261

But as I would also propose to at least reference some of the information contained in the material of 19 February 2003, I suggest it might be best to mark that as IRA2.

EXHIBIT #IRA2 MATERIAL DATED 19.2.03

PN262

MR NUCIFORA: Your Honour, if I may - I'm reluctant to interfere there - I have no problem with the letter dated 19 February being tendered as documentary evidence. I have a concern with the letter of 7 March if it's the one that is addressed to myself. I would have thought that that's a without prejudice discussion between us and if we are going to allow that sort of evidence in, there is a lot more of this and we can include a lot of e-mails and a lot of letters between us. I have a concern that, although it isn't labelled as a without prejudice document, it is clearly, to me, quite different from the one that was addressed to yourself and goes to a number of issues that we, without prejudice - I don't think there is any dispute - but there were areas of dispute, of course, relating to hours of work and annualised salary that we were seeking to resolve, and we have concerns about something like that if that were to be tendered as an exhibit. I have got no problem with referring it to - I mean, you have got it before you, your Honour, it is there. I have a real problem with putting that in the same boat as the - if you like, the same status as evidence as the - - -

PN263

THE SENIOR DEPUTY PRESIDENT: Yes, well, perhaps I can make it clear to you. I will have regard to the document of 7 March which is, indeed, prefaced as a letter to you from Mr Rochfort, in so far as it is necessary that I understand the position put by Mr Rochfort. I will not assume that any of the indications of agreement or, indeed, disagreement that assume a position on the part of the ASU, are in fact the case.

PN264

MR NUCIFORA: Thank you, your Honour.

PN265

THE SENIOR DEPUTY PRESIDENT: Does that clarify the issues from your point of view?

PN266

MR NUCIFORA: Yes, your Honour, yes, thank you.

PN267

MR ROCHFORT: I might be able to make it easier for your Honour too. What I have done in that is that I will eventually - - -

PN268

THE SENIOR DEPUTY PRESIDENT: It would be nice for someone to make it easier. No one has so far in the last couple of years, Mr Rochfort.

PN269

MR ROCHFORT: Well, but not for want of trying, your Honour.

PN270

THE SENIOR DEPUTY PRESIDENT: I accept that.

PN271

MR ROCHFORT: But I continue to try and what I have done - - -

PN272

THE SENIOR DEPUTY PRESIDENT: You have been very trying, Mr Rochfort.

PN273

MR ROCHFORT: Thank you, your Honour. What I propose to do in relation to the matters, while I don't press the issue of the letter, it does follow discussions that we had and if I was going to be as difficult as I might otherwise be, I would produce other correspondence, but I'm not doing so. However, I have prepared exhibits which reflect those matters, so I will be handing up exhibits saying, well, this is what I think that clause should be.

PN274

THE SENIOR DEPUTY PRESIDENT: Yes, I understand that. Well, look, I'll just note those documents so that we have put a line in the sand, as it were, so the parties know what it is I am referring to.

PN275

MR ROCHFORT: Thank you, your Honour.

PN276

THE SENIOR DEPUTY PRESIDENT: Now, Mr Nucifora?

PN277

MR NUCIFORA: Yes, sorry, your Honour, so exhibit IRA1 is - sorry, would that now be the letter to yourself or - sorry, is there a an exhibit of the letter to yourself which includes submissions by Mr Rochfort?

PN278

THE SENIOR DEPUTY PRESIDENT: The document I am referring to is the 7 March letter to you - - -

PN279

MR NUCIFORA: Yes, yes.

PN280

THE SENIOR DEPUTY PRESIDENT: And, as I have indicated to you, I am simply referencing that document for the purpose of understanding any submissions that Mr Rochfort might be putting that reflect his views rather than referring to it so as to arrive at any understanding of your views.

PN281

MR NUCIFORA: Yes, I understand that and we may have similar documentation - most of it should be at hand - that goes to explaining that letter more properly. But we have no, of course, concern in relation to the submissions that were obviously addressed to yourself being tendered as an exhibit. I think that was one of the earlier ones that you mentioned.

PN282

THE SENIOR DEPUTY PRESIDENT: Yes, that is IRA2.

PN283

MR NUCIFORA: IRA2. Your Honour - - -

PN284

MR ROCHFORT: I should say, before Mr Nucifora starts - and I should have said it before Ms Ferrier disappeared - that copies of those exhibits were sent to Baker and McKenzie anyway, not necessarily to Ms Ferrier, but to Mr Brown. I didn't keep anyone out - and Ms Whitecross, for that matter.

PN285

THE SENIOR DEPUTY PRESIDENT: Thank you.

PN286

MR NUCIFORA: Your Honour, in relation to exhibit ASU1, what I thought I might do is briefly go through that and, as I go through that, I would seek to, as I mentioned earlier, as I did to the volcano, or whatever we might like to call it; hours of work and shift work in particular, that I would call on Mr Bower as a witness.

PN287

THE SENIOR DEPUTY PRESIDENT: Well, actually, I was proposing a different approach, Mr Nucifora. I'm sorry, I thought we had reached agreement in that regard. The approach that I was proposing was that you would call Mr Bower to give evidence in respect to any of the issues with which you have a disagreement with Mr Rochfort.

PN288

MR NUCIFORA: Yes.

PN289

THE SENIOR DEPUTY PRESIDENT: Mr Rochfort would call Ms Parrott and to give her suite of evidence. I would then invite the parties to address each of the 16 remaining disagreed items and, in the course of those submissions, you might indeed refer to the evidence of Mr Bower.

PN290

MR NUCIFORA: Yes. In relation to - - -

PN291

THE SENIOR DEPUTY PRESIDENT: I am looking for the most expeditious way of achieving this little exercise.

PN292

MR NUCIFORA: Sorry, your Honour, I thought - - -

PN293

THE SENIOR DEPUTY PRESIDENT: And I'm still having regard to the expectation on your part that we will be completed by the end of today.

PN294

MR NUCIFORA: Yes, and I guess that is why I was going through the list before me, as we were going through the list, and doing it most expeditiously. Your Honour, if that is your preference, then we can go to Mr Bower's witness evidence and I would be, in particular, seeking - it would be better if we go through his witness evidence and then we go through the whole list of - - -

PN295

THE SENIOR DEPUTY PRESIDENT: That is what I was proposing.

PN296

MR NUCIFORA: Yes.

PN297

THE SENIOR DEPUTY PRESIDENT: Thank you.

PN298

MR NUCIFORA: If I may now call on Mr Bower as a witness.

<STEVEN JOHN BOWER, SWORN [12.10pm]

<EXAMINATION-IN-CHIEF BY MR NUCIFORA

PN299

MR NUCIFORA: Mr Bower, I wonder if you could give your full name and address and occupation?---Steven John Bower of Unit 7, number 12, Ronald Avenue, Harbord in the state of New South Wales and my occupation is Trade Union Organiser with the Australian Services Union New South Wales Clerical and Administrative Branch.

PN300

I wonder if you could tell the Commission what areas of responsibility you have had, not only in recent times, but from the beginning of your employment with the ASU New South Wales Branch?---Initially, from approximately the end of 1987 when I was first employed, I was involved in the, specific to this area, I suppose, the Road Transport Industry which also took in at that time in the same award the Customs Clearing and International Freight Forwarding Industry. I had other areas, I suppose, of interest which were involved in the New South Wales jurisdiction. I subsequently moved into being involved in the airline industry for a period of approximately six years from, I'm guessing, '94 or '95 through until about six months ago and about six months ago I moved back into the road transport, customs clearing international freight forwarding side of the union's involvement.

PN301

How many years of experience would you have had, just in terms of the international freight forwarding and customs clearing industry?---Somewhere between six and seven - seven and a half, at a rough guess, allowing for the gaps and the breaks.

PN302

In that time, what issues - industrial issues - have arisen with the particular employers in the industry?---Specific industrial issues?

PN303

Yes, any of those that responded to this award. We know that there is an appendix to the award that goes to Federal Express. Are there any other issues such as that, that you have had direct involvement with?---Over a period of time - well, there were a number of issues, I guess, that I dealt with some time ago. I would have difficulty providing detail but certainly at DHL, I had some involvement at a company - I'm sure that it's still there - Flyaway AFA. Certainly with TNT, who are not respondents to this award but were actually hived off into

**** STEVEN JOHN BOWER XN MR NUCIFORA

the other award, but they do have employees employed in the domestic and international freight forwarding side of the business, numerous issues and involvement there and they're actually respondent to the Road Transport Award which has - I'm sure everybody is all aware - already been simplified and currently does not allow for weekend work, et cetera.

PN304

Mr Bower, in terms of issues that related to hours of work and shift work, do you have any direct experience of that?---Well, over a period of time there have been numerous issues regarding various companies regarding the application of the - of the award - the interpretation of the award.

PN305

I was wondering if you could refer us to what part of the award, in particular?---I don't - sorry, I don't - - -

PN306

Sorry, hours of work or shift work and the current provisions in the award?---Well, I've - look, all I could say is that, yes, I've dealt with issues in relation to that. I've - sorry, I'm struggling a bit.

PN307

In terms of shift in the industry in that time, would you agree that there has been change in terms of hours required to be worked?---Yes, I would, I would.

PN308

And how have - - -?---It's - - -

PN309

And how have - sorry, I will let you finish there, Mr Bower?---It's - the industry - the industry, I would suggest, has expanded and has taken on a number of larger players who initially were not involved in the Australian industry and, yes, the requirements by employees has changed certainly over that period of - that period of time to create a necessity for varied and longer hours of work, I would suggest.

PN310

Now, Mr Bower, how have they been dealt with, any change in hours, how have they been dealt with in terms of are there certified agreements in the industry?

**** STEVEN JOHN BOWER XN MR NUCIFORA

PN311

MR ROCHFORT: Well, I've really been very tolerant in my new guise and not objecting to leading questions but I - - -

PN312

THE SENIOR DEPUTY PRESIDENT: Mr Rochfort, I've always found you very tolerant.

PN313

MR ROCHFORT: Thank you, sir, thank you, but I think I must become a little bit more pedantic about Mr Nucifora leading Mr Bower, if your Honour please.

PN314

THE SENIOR DEPUTY PRESIDENT: Look, I'm sure Mr Nucifora knows the rules of the game and I think you might need to think about the way in which you phrase some of your questions.

PN315

MR NUCIFORA: Yes, your Honour.

PN316

I wonder if Mr Bower can be given a copy of the - it's not yet an exhibit - well, it may not need to be an exhibit - but a copy of the draft award that you issued?

PN317

THE SENIOR DEPUTY PRESIDENT: Well, Mr Nucifora, the letter that I sent on 27 November required the parties to provide both each other and myself with any document upon which you proposed to rely.

PN318

MR NUCIFORA: Yes.

PN319

THE SENIOR DEPUTY PRESIDENT: I'd have to say, I have but one copy of that draft decision and it is my copy and I have written various notes upon it. I am not in a position to provide the witness with the document that you are proposing that he be given.

**** STEVEN JOHN BOWER XN MR NUCIFORA

PN320

MR NUCIFORA: I have a copy here, your Honour.

PN321

THE SENIOR DEPUTY PRESIDENT: Then you are in the better placed position to provide it to him.

PN322

MR NUCIFORA: If I may - - -

PN323

THE SENIOR DEPUTY PRESIDENT: Certainly.

PN324

MR NUCIFORA: - - - allow the witness to go through that document? Now, I think we all have a copy of - Mr Rochfort, I am sure, has a copy of that. If I may, Mr Bower, refer you to clause 24.1 and, in particular, clause 24, Hours of Work? I might just give you some time to go through the clause 24 and, in particular, if I take you - at this stage if you go to 24.1.3. I just want to ask, Mr Bower, how that particular provision might affect members and employees generally in the industry?---Well, at clause 24.1.3, the second - the second half of that particular clause actually provides for - and it's shown quite clearly there because the first half reflects, I suppose, the - the existing award provisions and the second half of that particular clause specifically allows for, in particular, instances or in relation to particular employees who are required to commence, or may be required to commence, duty earlier than 8am, that they can have their ordinary hours expanded out to 8pm which is actually an extension of - of two hours whereby the afternoon shift loading or shift penalties would not be paid and there are, without being able to give absolute specifics - well, I could actually - no, I couldn't - without being able to give absolute specifics, I can think of one, potentially two, areas where - or companies where members of the union would, in fact, therefore, for their whole shift lose the current 17 per cent afternoon shift penalty because they are rostered to finish work between 6 and 8pm.

**** STEVEN JOHN BOWER XN MR NUCIFORA

PN325

Mr Bower, if I could take you to 24.1.4 and if I could just ask you to read that clause - not out loud - and I wonder if you could tell the Commission what you see as being the effect of that clause in the industry?---Well, that - that specific clause there is currently in the award in - in a limited form, I believe, in that it applies to employees within the state of New South Wales. Because - and this is my understanding without being able to absolutely attest to it, because there is a similar provision within the general common rule state award and at the time of the creation of this award, so that employers in New South Wales were not disadvantaged, New South Wales had a specific provision put in which allowed for the lesser 10 per cent shift work loading, if you like, for employees who were required to commence work between 5am and 8am. So, that was a provision that was put in New South Wales specifically to not disadvantage employers at the time of the creation of this award and what is occurring or proposed here is that the 10 per cent shift loading flexibility, if you like, for hours where employees commence work between 5am and 8am, is being spread Australia wide so the New South Wales provision, or area, if you like, is taken out of it and that lesser penalty payment would then affect employees in states other than New South Wales.

PN326

In relation to the early start, Mr Bower?---In relation to the early start, correct, sorry.

PN327

Do you have anything to say about the finishing time between 6 and 8pm?---Oh, sorry, and again, clearly yes, that is - that is as per what I said about clause 24.1.3, that also obviously impacts upon the - the ordinary hours of work and would reduce in a number of instances - some instances anyway - the afternoon shift loading that is currently payable after 6pm for people who are rostered to finish after 6pm.

PN328

Yes, that is the afternoon shift that reads in the current award, after 6pm?---Yes, that's correct.

PN329

Mr Bower, I wonder if you could read 24.1.5 which includes the conditions set out in 24.1.5.1 through to 24.1.5.5? Have you see this draft clause before? If you haven't, then I'm asking if you could read through that, Mr Bower?---Well, without - there are - there are - - -

**** STEVEN JOHN BOWER XN MR NUCIFORA

PN330

MR ROCHFORT: I'm sorry, was there a question in there, your Honour?

PN331

MR NUCIFORA: I'm sorry, the question in relation to 24.1.4 point 1 through to point 5, is in terms of how that might affect the industry and the arrangement of hours?---Well, I gather some of - some of this is as per the award. Other - other parts of it are in - are directly or potentially - I can't say absolutely for certain that they are exactly the same but - but appear to reflect the agreement that was being discussed earlier. In a number of areas - in a number of areas it would lead to - the ten hour shifts, for example, would lead to lesser periods or lesser amounts of overtime being paid on particular occasions to various employers[sic].

PN332

MR ROCHFORT: I think the witness may mean employees. It would be nice to have employers paid but unfortunately, it doesn't happen.

PN333

MR NUCIFORA: I'm grateful to Mr Rochfort for that correction?---Thank you. By employers to employers.

PN334

Mr Bower, in terms of your knowledge of shift work in the industry now, I wonder if you could inform the Commission about current arrangements and how current arrangements are affected as compared to when the award - the current award was made in 1992?

PN335

THE SENIOR DEPUTY PRESIDENT: I'm sorry, Mr Nucifora, can you just repeat that question? I'm afraid I got lost somewhere in terms of what the actual question is?

PN336

MR NUCIFORA: Yes. In terms of current shift arrangements, I wonder if you can inform the Commission of your knowledge of current shift arrangements in the industry?---Well - - -

**** STEVEN JOHN BOWER XN MR NUCIFORA

PN337

Are there - in terms of if there is shift work worked in the industry and to what extent?---Certainly there is shift work worked in the industry. There is, amongst the larger players, weekend work required and - and afternoon and morning shifts required. I'm not aware of there being a large number or percentage of evening or night - sorry, night shifts or seven day shift work - sorry, when I say seven day shift work, I mean regularly rostered night shifts. It - I guess there are some larger players who fly their own aircraft. Your UPSs of this world, your DHLs of this world, your Federal Expresses of this world and weekend work and evening and morning work is a requirement there. With the smaller players there doesn't seem to be - when I say smaller players there doesn't - there doesn't to be the same requirement for that style of work. There is also, within the industry, employers or companies who do actually pay to the provisions of the award as they stand. On example that would be DHL and there are other employers within the industry who avoid, shall we say, their - their obligations.

PN338

You have mentioned DHL and I'm not requesting that you mention the names of the other employers, but are you aware of how - how widespread that might be, the other arrangements that are not as per the award - other shift arrangements, I'm sorry?---In medium sized organisations. Medium sized organisations in my terms, I suppose, would be 20 to 50 employees potentially, maybe a little bit less than that. I would say that it was reasonably wide spread.

PN339

What pay arrangements exist for those employees, are you are aware? What employment arrangements - and by that, I'm putting - are we talking about certified agreements, AWAs or just common law arrangements - I'll just put those three options to you?---Generally speaking, common law arrangements. I'm - I'm - I can't say that there aren't any AWAs but I'm not - not really aware of there being any within this industry and there's one - one certified EBA that I am - that I am aware of.

PN340

And who is that with, Mr Bower?---That's with TNT.

**** STEVEN JOHN BOWER XN MR NUCIFORA

PN341

TNT. That is a section 170LK, non-union or - - -?---I'm sorry, I wasn't involved at the time that was done. I'm really not sure.

PN342

Are you aware of any other collective agreements, either non-union or union collective agreements in the industry?---Not that I'm aware of, no.

PN343

Mr Bower, what is the prevalence of Saturday and Sunday work in the industry?---Again, amongst the major or the larger organisations I would say that because of their flight times - and I guess that has to do with the slots at the airport, et cetera - there is - there is a reasonable amount of work performed at that time. With some of the other employers, my understanding is that there is sometimes a need to communicate with people overseas. I wouldn't say that it's - from my experience anyway - that it's an absolute necessity that people work on Saturdays and Sundays. Again, I guess what we are also talking in terms of here is - is the area of the industry or the business that they are involved in. You could go to employers who deal mainly in shipping and there would be - such as John Fletcher International - there would be very little requirement to - to have a lot of weekend work but employers who do mostly airfreight, then that provides a higher ratio or potentially, I would say, a higher requirement.

PN344

Yes. How much of that work that you have mentioned on Saturdays and Sundays, is regular work, that is, regular on most Saturdays and Sundays of the year?---Again, amongst the - amongst the larger players I would certainly say that - that it's regular and, as I say, there are organisations that are paying to the award and paying the rates and there are - so yes, it would be - it would be, certainly with the larger employers and the volume that they carry, it would be regular, very regular. In the smaller players, I don't know that you could necessarily term it irregular but I don't think you could say very regular.

PN345

Mr Bower, have you sighted the shift work clause in the draft award before, that is, in clause 25?---Sorry, in clause?

PN346

Have you sighted and read through the shift work clause, clause 25 in the draft award?---I have been through it several times, yes, but I - I guess I could go - well, obviously, I could go through it again but what are we specifically talking about?

**** STEVEN JOHN BOWER XN MR NUCIFORA

PN347

Well, in relation to shift work, how do you see that clause, as compared to the existing clause in the award, affecting shift work arrangements in the industry and particular entitlements - employee entitlements?---Well, again, the - the wider span of hours from 6pm to 8pm would disadvantage some employees in a number of organisations.

PN348

Sorry, can you just go through that? Which provision are you referring to there?---Sorry, 25.2.1.

PN349

Afternoon shift?---Afternoon shift, yes, where currently in the award the ordinary span of hours allows that if you are rostered to work after 6pm, you are paid the 17 per cent afternoon shift allowance and this would vary it to become 8pm. Without being certain, I think the night shift is the same.

PN350

In terms of work that is currently carried out on a Saturday and a Sunday - shift work that is carried out on a Saturday and a Sunday, what effect would that have?---Well, I can't see - correct me if I'm wrong - there being any notation whatsoever in that particular clause as to what employees would be paid for working on a Saturday or a Sunday in relation to penalty rates. Currently per the award that should attract on a Saturday, as I understand it, time and a half for the first two hours and double thereafter, because it's actually an additional or an overtime payment. I can't see, in this particular provision, any reference to what they would be paid. Equally, I can't see here - and I guess this is a community standard rather than necessarily an industry standard - at this stage the award does not allow for seven day shift work so, therefore, there is no provision in the award to allow for, as is the community standard, I would suggest, an additional accumulation of a - or of an additional weeks annual leave. So, the five weeks annual leave or the one day's annual leave per 36 shifts worked as a seven day shift worker, there's no requirement for that to be in the award at the moment. However, if we were to go to seven day shift work, if - if it was contained - well, I guess that comes down to the question about whether or not it's actually seven day shift work or whether it's being rostered ordinary hours on seven days and therefore where it should be properly contained in the award - if it was considered to be ordinary hours of work rostered over seven days and contained in the ordinary hours clause, then you would then question about the community

**** STEVEN JOHN BOWER XN MR NUCIFORA

standard and whether or not people should receive seven days or an additional seven days annual leave as per seven day shift workers in all other awards. Seven days notice seems to be the same. There's no definition of early morning shift. 25.2.4 appears to be at odds with the clause that we discussed, or dealt with, earlier whereby the early morning shift means a shift which commences between midnight and 8am and that appears to be at odds with the 24.1.4 which allows for the 5am start, where people would only get 10 per cent. 25.9.2 allows that meal money is paid after two hours and, I think, for shift workers in the current award it's paid after one hour and I think that's actually different to what occurs for day workers. I think it's two hours for day workers in the current award. Without saying that's everything, I think that's all I can see at the moment.

PN351

Mr Bower, in terms of this industry, I wonder if you could tell the Commission what sorts of claims the ASU has made on behalf of employees in relation to hours of work and shift work?---In relation to back pay issues or - - -

PN352

Well, in relation to how they're applied or all of the issues?

PN353

MR ROCHFORT: I'm sorry, could the question be asked again?

PN354

MR NUCIFORA: Yes, it can.

PN355

I wonder if you could tell the Commission what sorts of claims - and when I say that I mean whether it be with the employer and or in the Commission - has the union, ASU, pursued in New South Wales in relation to hours of work and shift work, whether it be award interpretation or whether it be - - -

PN356

THE SENIOR DEPUTY PRESIDENT: Perhaps before you give the witness the answer to the question, you might let him answer it himself.

**** STEVEN JOHN BOWER XN MR NUCIFORA

PN357

MR NUCIFORA: Sorry. Yes, sorry. In terms of the existing award, Mr Bower, I'm referring to whether the branch has pursued any claims in relation to breaches of the award in terms of hours of work and or shift work?---Well, to be - to be quite frank, I don't think - to my knowledge, anyway, in the period of time that I have been involved and allowing for the fact that there is a gap there - but I'm not aware of there having been any claims that have actually specifically come before the Commission apart from - apart from - well, one whereby - which - which specifically goes, I suppose, to interpretation of the Federal Express Agreement. However, there have been - certainly I was involved in - in - quite a number of years ago, in issues with DHL.

PN358

In relation to hours of work?---In relation to hours of work and weekend work and the penalty rates that - that were or were not being paid.

PN359

Was that resolved?---It was - it was satisfactorily resolved to - to everybody's benefit and I guess - I guess that's why I can comfortably speak to what's occurring at DHL and the fact that they are one of the organisations that I'm aware of that is complying with the award provisions and paying the - the penalty rates on weekends and the afternoon shift, et cetera. So certainly that's - that was the case quite a number of years ago. Yes, look, that's probably the - that's probably the major - the major one in relation to that.

PN360

How was that resolved in terms of - how was that resolved, Mr Bower?---On site negotiation and discussion. I mean, the - the issue was raised, the questions were asked, it was revealed and confirmed that there was some, shall we say, anomalies and myself and a number of representatives approached the employer and, to be quite frank, when the issues were pointed out, the employer rectified them quickly, as quickly as they possibly could.

PN361

I have no further questions, your Honour. Thanks, Mr Bower.

PN362

THE SENIOR DEPUTY PRESIDENT: Mr Rochfort?

**** STEVEN JOHN BOWER XN MR NUCIFORA

PN363

MR ROCHFORT: Your Honour, I'm likely to take more than a quarter of an hour, which will leave Mr Bower, in all the circumstances, in the middle of cross-examination. It may be more convenient all round - - -

PN364

THE SENIOR DEPUTY PRESIDENT: All right, well, it might be an appropriate time that we adjourn for lunch. I would propose we reconvene at 1.30. Is that acceptable to the parties. Thank you. I will adjourn the matter on that basis, thank you.

LUNCHEON ADJOURNMENT [12.45pm]

RESUMED [1.35pm]

PN365

THE SENIOR DEPUTY PRESIDENT: Mr Rochfort?]

PN366

Thank you, Commissioner - I beg your pardon - your Honour. Your Honour noted that Mr Nucifora and I are quite happily sharing this lectern without any disagreement at all.

PN367

THE SENIOR DEPUTY PRESIDENT: Yes, you ought to be congratulated on that. We'll include it as an award provision, or we would do so, were it to be allowable.

<CROSS-EXAMINATION BY MR ROCHFORT [1.36pm]

PN368

MR ROCHFORT: Mr Bower, I'll just go to the evidence you gave to Mr Nucifora. You say that you have had experience in road transport - your experience as a union official?---Road transport.

PN369

In road transport?---That's correct.

**** STEVEN JOHN BOWER XXN MR ROCHFORT

PN370

And customs clearing and freight forwarding industry?---Yes.

PN371

And airline industry?---Yes.

PN372

And you were out of the customs clearing and freight forwarding industry, you said, by about six months ago when you got back into that particular area?---Yes, that's - that's correct. Well, that's what I said. I couldn't guarantee that it was exactly the six months but - - -

PN373

No, no, and nothing hinges on it, it's just that those - what I wanted to ask you about specifically was are you aware of the events in 1992 which led to the so called splitting of what was then the Clerks (Road Transport and Customs Clearing Industry) Award?---I was involved at the time.

PN374

You were involved at the time. Can you tell the Commission, in your words, why that award was split?---I believe that there was a view that the industries, from the employer side, anyway - not necessarily the union view - that the industries had disparate needs, or different - different needs and different requirements and that the road transport employers had been largely running the industry and the negotiations and so therefore the international freight forwarding and customs clearing side of the industry sought, over quite a period of time, to - to have the award split and have a separate award for their particular industry.

PN375

And the award was split. That's correct?---That's correct, yes.

PN376

And did the award, which was split into the Customs Clearing and Freight Forwarding Sector, change in any respects from what it had been?---Working from memory at that stage, my response would be no.

PN377

And is it true, Mr Bower, that the purpose of negotiations since 1992 has been to achieve the recognition of those individual characteristics in the Customs Clearing Sector Award?

**** STEVEN JOHN BOWER XXN MR ROCHFORT

PN378

THE SENIOR DEPUTY PRESIDENT: I'm sorry, Mr Rochfort, you are going to need to clarify that for me. I'm not quite sure that I understand the question.

PN379

MR ROCHFORT: Would - I withdraw that question. Would you agree with me that the negotiations commenced in 1992 with officials in the union with a view to introducing provisions which identified that split award more closely with the customs clearing and freight forwarding industry?---Well, look, I guess I'd have to agree with that. I mean, there have been a number of issues that have been under discussion - I wouldn't necessarily say from 1992, I couldn't put a date on it - but under discussion for quite a while.

PN380

Now, in that time, have you spoken with your members about the need for change in that particular customs clearing sector award?---I have on occasion raised with members the - some of the claims that the employer was - or the employers or the organisations, if you like, on behalf of the employers, were making, yes.

PN381

And what has been their reaction?---Their reaction generally speaking was that they would potentially suffer some financial loss as a result of these things - or some of the changes or potential changes.

PN382

Right. Now, you have identified some of those and we will get onto those in a moment. So that's what they've said to you?---Yes, that's correct.

PN383

So your evidence today hasn't been anecdotal, it's been as a result of statements made to you by your members?---Yes, that's correct.

PN384

And from how many companies have you got those sort of directions from your members? You mentioned a couple?---Well, I guess there could be all of the organisations that I've raised - at different times. I mean, there's not always membership in all of the organisations and without actually - without actually being able to name them, I would say that there would be 10 or 15 others that I've probably spoken to at different times over - over that period of time but I couldn't - I couldn't give you names with any absolute clarity and certainty.

**** STEVEN JOHN BOWER XXN MR ROCHFORT

PN385

All right. You mentioned DHL?---That's correct, yes.

PN386

How many members do you have at DHL?---Currently there's, I think, seven. A number of years ago we were - when I was in the industry previously and these issues were being discussed - probably 30 or 40 or 50. I've been out of the industry for a while. I've only just recently recontacted them actually when I realised that there was only seven and I think the call centre actually has moved to Brisbane, so that probably explains that as well.

PN387

That's true. Flyaway, how many members do you have there?---Currently none. We used to have 15 or 20. I'm not sure that Flyaway is still operating, frankly.

PN388

It operates but it's not called Flyaway any more - one of the reasons we're here today. It's a long while since there have been 15 members, isn't it?---Well, I can't comment on that because I've got to say I haven't checked the computer and I've only come in recently.

PN389

Fed Ex, how many members do you have there?---Thirty.

PN390

You mentioned UPS. How many members do you have there?---None currently, that I'm aware of, but we had - that was a good day, actually - about 25 or 30.

PN391

Yes but so it would be true to say that your membership in the industry is very, very low?---I certainly wouldn't describe it as being - in New South Wales, which is all that I can speak for - high.

PN392

Now, that's another question, isn't it? You don't know what the situation in other states is, do you?---I'm certainly not privy to the other states' branches membership records.

**** STEVEN JOHN BOWER XXN MR ROCHFORT

PN393

All right. Now, you also mentioned TNT but TNT is not respondent to this award, is it?---Well, no they're not. I raised the issue because they are involved in the industry and I would suggest to you that they are one of the major players.

PN394

Are they are a major player in the same way that UPS is a major player?---Well, again, I can't speak world wide but I would say in the context of the industry in Australia, I would say yes.

PN395

Now, in answer to another question by my friend you referred to the changes in the industry over your, I think it was, 15 years experience in the industry?---Well, no, that's 15 years working for the union in total. I think I said something between six and seven and a half, allowing for the fact that I had about a six year gap out of the industry all together while I was involved in the airline industry and we know what happened with Ansett that necessitated a number of restructures including in union offices.

PN396

Yes, I am aware of what happened with Ansett and you know I was involved in that. But the industry characteristically now is far different, isn't it, from what it was, say, 15 years ago?---I would say by my observation it's larger and there are a greater number of larger world wide players involved in the industry in Australia than there was 15 years ago, certainly.

PN397

Including Fed Ex?---Yes, including Fed Ex.

PN398

THE SENIOR DEPUTY PRESIDENT: Mr Rochfort, I don't necessarily deny you the right to ask that question but I would have to remind you of y our undertaking, given to Ms Ferrier, that you weren't going to reference Fed Ex.

PN399

MR ROCHFORT: Well, that's true, I beg your pardon. I wasn't saying it in that context.

**** STEVEN JOHN BOWER XXN MR ROCHFORT

PN400

THE SENIOR DEPUTY PRESIDENT: Yes, I understand that.

PN401

MR ROCHFORT: But I will withdraw that question.

PN402

THE SENIOR DEPUTY PRESIDENT: I thought, as a matter of fairness, I should just remind you of that.

PN403

MR ROCHFORT: Thank you, your Honour. It was a slip of the tongue. I beg your pardon.

PN404

Including DHL - well, hang on, more especially including UPS, because it's something of a new boy on the block, isn't it?---UPS would be correct. DHL, I believe, was around 15 years ago.

PN405

Right. And things have changed within those organisations; there's been a lot of mergers and a lot of companies have disappeared and so on?---Well, again, that - that probably - I couldn't really comment because of the gap that I had.

PN406

Are you aware, for example, that Flyaway became Fritz and is now part of UPS?---I hadn't caught up with that.

PN407

I beg your pardon, I thought it was common knowledge. But these are the sorts of things that are happening; there's mergers, there's take overs, there's disappearances and so forth and the industry characteristically has gone through significant change, is that correct?---Well, there's - look, there's been changes. There's been changes in industry generally and I can't speak to the specifics that you are putting to me.

PN408

I am sorry, I thought I put it as a general question: generally there's been changed?---I would assume that over the six years that I was absent, certainly there's been some change.

**** STEVEN JOHN BOWER XXN MR ROCHFORT

PN409

Right and you said, in answer to a question by Mr Nucifora, now requirements of the work that employees are engaged in has changed, creating a necessity for varied hours?---Again, my observation is that - that in amongst the major players, that's the case.

PN410

Are you aware, for example, of new requirements by Australian Customs?---No, I wasn't aware.

PN411

But you are involved in the industry and you are not aware of the new requirements from April 2002 regarding the clearance of in bound goods?---Well, I'm sorry but simply, all I can say is that I have been absent from the industry for some period of time and I'm just getting back into it and, as I did indicate to you, I only made contact with - or recontact with the members at DHL probably three weeks ago at best. So, I'm not totally across everything at the moment and I'm not totally across all the changes that have occurred, but we'll get there.

PN412

Yes, right, but that is your evidence. Your evidence was that the requirements for employees to work has changed and, in your words, created a necessity for varied hours?---Well, I certainly said words to that effect that was what - what I had observed, as I said, within the major players in the time that I've been back involved.

PN413

Right, now, Mr Nucifora took you to the draft order and you understand that that is an order which - I beg your pardon, in draft form - which was made by his Honour and attached as a draft to his Honour's decision when it was initially given. You understand that, do you?---Yes.

PN414

And you were first referred to 24.1.3 and you were asked regarding specifically the arrangement: the spread of hours shall be 5am to 8pm. Do you recall that?---Yes, yes.

PN415

And your answer to your question by Mr Nucifora as how that would affect employees, you were told that it would affect employees in states other than New South Wales?---Sorry, that was in relation to - that particular aspect of my response was in relation to the 24.1.4

**** STEVEN JOHN BOWER XXN MR ROCHFORT

PN416

THE SENIOR DEPUTY PRESIDENT: My notes indicate that was in relation to 24.1.4, Mr Rochfort.

PN417

THE WITNESS: Yes.

PN418

MR ROCHFORT: I beg your pardon.

PN419

HIS HONOUR: And the 10 per cent.

PN420

MR ROCHFORT: Yes, I beg your pardon. Putting it in that context, 24.1.4, do you agree that you answered that it would affect employees in states other than New South Wales?---That's correct.

PN421

So that is only anecdotal, isn't it? You don't know. You have no knowledge of other states, is that correct?---I think I gave at the time, in my answer, the background to that provision and that it was a New South Wales provision that was imported into the award and the award currently, I believe, actually says employees employed in the state of New South Wales who are required to work in conjunction with other employees and commence between 5am and 8pm. So I think - I think the award is very clear in that that provision of the 5am to 8am only 10 per cent being paid as a shift allowance is very clear in the fact that it is confined to New South Wales and therefore, does not apply in other states.

PN422

And is that a fair - - -

PN423

MR NUCIFORA: I'm sorry, your Honour, I might be able to assist the parties. The existing award provisions - sorry, the witness and Mr Rochfort - it's clause 6C, the second paragraph refers to New South Wales and it's - and the early start only applying to that state. That's in the current award, your Honour.

**** STEVEN JOHN BOWER XXN MR ROCHFORT

PN424

THE SENIOR DEPUTY PRESIDENT: Yes, thank you, Mr Nucifora.

PN425

MR ROCHFORT: And is it fair - - -

PN426

THE SENIOR DEPUTY PRESIDENT: Sorry, Mr Rochfort, you are going to need to qualify that question. I'm not quite sure I can appreciate the context in which the witness can answer it. Fair from whose perspective? Fairness is a highly elusive term, I've found.

PN427

MR ROCHFORT: I'm sorry?

PN428

THE SENIOR DEPUTY PRESIDENT: Fairness is a highly elusive term. Perhaps you could explain the context in which you would intend the witness to answer the question.

PN429

MR ROCHFORT: Yes. What I want to put to the witness is it not reasonable, that a provision that applies in New South Wales, applies equally in other states where like work is undertaken.

PN430

THE SENIOR DEPUTY PRESIDENT: Well, you can feel free to ask the witness a question. What I'm saying is you'll need to clarify what it is that, within this witness' area of expertise, you want to address.

PN431

MR ROCHFORT: Thank you, your Honour.

PN432

Well, you have already said you don't have any knowledge of other states, have you?---Again, I think you're misquoting. I put in my response the context of the knowledge that I had, which was the knowledge of the wording of the current award which confined that provision to New South Wales.

**** STEVEN JOHN BOWER XXN MR ROCHFORT

PN433

But otherwise you have said that your experience and your expertise and your knowledge is, again, in the state of New South Wales. You haven't been an organiser, for example, in other states?---No, I haven't been an organiser, for example, in other states.

PN434

Nevertheless, is it reasonable that a provision which applies in New South Wales and would appear to be, for historic reasons on what your evidence was - it was imported into the award because it had happened - is not allow to apply in other states? Is that reasonable, in your view?---In my view, it can be reasonably purely and simply because the reason that provision was put there was it was something that employers in New South Wales already enjoyed which was not enjoyed by employers elsewhere and so it was held that - that employers in New South Wales should not be disadvantaged. So therefore, that is why it was confined to New South Wales. If we - if - another example of what you're proposing is if the trade union movement were able to achieve the long service leave standards of South Australia, Australia wide, we would be more than happy.

PN435

You are guessing, aren't you, as to why it went into the award in the first instance, aren't you?---Well, I don't - I don't believe you could consider it to be a guess because when I first became involved, clearly, as the New South Wales State Organiser, I questioned why New South Wales would have lesser provisions than other states and I questioned them with a colleague of both yours and mine who - who was heavily involved in this award and is now deceased, Dick Wozen, and that, admittedly it's third hand, but that was the response that Mr Wozen provided me.

PN436

Well, would you accept that I was also involved in the making of that award in 1977?

PN437

THE SENIOR DEPUTY PRESIDENT: Mr Rochfort, I'm afraid I'm at a loss as to where this is going.

**** STEVEN JOHN BOWER XXN MR ROCHFORT

PN438

MR ROCHFORT: Where it's going is - - -

PN439

THE SENIOR DEPUTY PRESIDENT: I'm very happy to hear from you where it is going, but I cannot reconcile this particular debate with what is fundamentally in most areas a relatively simple issue of the simplification of existing award provisions.

PN440

MR ROCHFORT: Well, that is my point exactly and I was sort of concerned as to why Mr Nucifora would have gone it. I don't want the Commission to be misled as to why that provision is there and now it, all of a sudden, doesn't have any - is not meeting the favour of the union. It just defies my comprehension they should want to have award provisions that apply in one state and not another.

PN441

THE SENIOR DEPUTY PRESIDENT: But surely that is a matter for you to address in terms of your submissions. Where I'm particularly bemused at the present time is how this line of questioning is going to advance the case in any material form.

PN442

MR ROCHFORT: I take your Honour's point.

PN443

You were asked how it affected - I beg your pardon - 24.1.5, you were asked about that and how that would affect your members, few as they may be, and your answer was that ten hour shifts would lead to a lesser amount of overtime being paid to employees?---Yes, that's correct. In a number of - of instances and circumstances that would be the case.

PN444

Are you aware of whether or not in Fed Ex - I beg your pardon, I've transgressed again - whether there is any company that currently works on an arrangement of nine and a half paid hours a day, where there has been a reduction in overtime?---Sorry, I missed the final part of the question.

**** STEVEN JOHN BOWER XXN MR ROCHFORT

PN445

Are you aware of any company who currently works a nine and a half hour paid day - - -?---Yes.

PN446

Where there has been a reduction in overtime?---Well, I'm aware of an organisation working a nine and a half hour day. I assume I'm allowed to transgress.

PN447

I don't think so. I think that would be equal. You might - - -?---But - but equally speaking, I could not now go back to, with any absolute certainty, as to exactly what effect that had at the time that that was introduced and, in fact, I'd have to check with the individuals concerned because at that particular organisation, to be honest with you, I'm aware that there are sections or departments that have, over a period of time by agreement, fluctuated between eight hour shifts and, call it, nine and a half hours or call it ten hour shift.

PN448

So what you are saying is a ten hour shift, with a half hour break, is used to meet a particular need?---Not a specific need on a specific day but what, depending on the - I suppose it is a specific need in that depending on the - the schedule or the flight times, which do vary, the rostering is - is changed. It's also - it's also changed at the request of employees on occasion.

PN449

And would you agreed with me in this hypothetical situation if someone is rostered to work four days a week and then because of need, they come in and work a fifth day and that fifth day, the entire fifth day, would be paid at overtime rates?---Well, in those circumstances, yes, that's correct.

PN450

And those overtime rates would be what?---Time and a half for the first two hours and double thereafter.

**** STEVEN JOHN BOWER XXN MR ROCHFORT

PN451

Thank you. Is that a loss of overtime in that hypothetical situation?---

PN452

Well, it would depend on individual circumstances because there would equally be circumstances where the overtime may well be there at the end of the day or whatever and the individual concerned, due to their own arrangements, personal arrangements or other arrangements, are not able to take advantage of - I mean, we're talking hypotheticals here - - -

PN453

Yes?---Of - of those circumstances. So it could well be. It may equally not be.

PN454

Doesn't the award require that the company may - or doesn't the award provide, rather, the company may require employees to work overtime?---I think the award says something along the lines of reasonable overtime and in all the years that I've been involved, the dictionary definition of reasonable has not helped me, because the dictionary definition of reasonable simply sets out that what is reasonable for one individual, may well be unreasonable for another.

PN455

Nevertheless, in that circumstance that I have described, there would be an advantage, wouldn't there, in terms of overtime?---Well, potentially if the individual found it reasonable and was able to take it up.

PN456

The individual took it up anyway, is that correct?

PN457

THE SENIOR DEPUTY PRESIDENT: Mr Rochfort, once again, I'm sorry, I'm lost. You are dealing with hypothetical situations. You are asking questions about whether things are reasonable and whether they represent advantages and the answers can be interpreted in so many different ways that I'm not sure where it's taking us.

PN458

MR ROCHFORT: Well, where it is coming from - I don't know where it's going at this stage myself - but the answer comes from a claim by the witness - and he is, after all, the only witness, as I understand it, for the union, so we have to rely upon his evidence that the ten hour shifts will lead to a lesser amount of overtime being paid to employees and I'm saying to him and asking him to agree that that is not necessarily so and I think I've made that point.

**** STEVEN JOHN BOWER XXN MR ROCHFORT

PN459

THE SENIOR DEPUTY PRESIDENT: Okay then.

PN460

MR ROCHFORT: Now, you say that you have a knowledge of shift work arrangements in the industry and you mentioned - or you stated that shift work was commonly worked amongst you, quote, larger players, is that correct?---That's correct.

PN461

And not to the same extent amongst the smaller players?---That's my understanding.

PN462

Do you have any idea of what the incidents of shift work is in Perth?---No, clearly I'm not in a position to respond to that.

PN463

But you would accept that there are respondents to the award that operate out of Perth?

PN464

THE SENIOR DEPUTY PRESIDENT: Mr Rochfort, the witness has indicated his area of expertise is New South Wales. He has made that point a couple of times.

PN465

MR ROCHFORT: Now, you said that - you mentioned particularly DHL, that they pay to the provisions of the award as they stand and other employers, in you words, avoid their obligations?---There are, as in all industries, some employers who don't abide by the award. In the majority of instances I would suggest that it's - well, in the majority I would suggest that it's out of ignorance. There are other circumstances where I believe or perceive, in my opinion, that they are knowingly avoiding their obligations.

**** STEVEN JOHN BOWER XXN MR ROCHFORT

PN466

What do you do about it as a union official?---Well, when I become aware of that, obviously there is a responsibility to - to attempt to get employers to abide by the awards of the Commission. However, I don't see that it's in the interests of the members of the union to spend hour and hours and hours attempting to resolve those issues or prosecuting so I go and attempt to make the employees of that organisation aware of their terms and conditions - or what are the appropriate terms and conditions of employment. However, in the circumstances where they choose not to join the union or avail themselves of the services available, the issue is not pursued.

PN467

And a situation would be no different if the award was changed?---I would not behave in any different manner.

PN468

You would be as assiduous as you are now in pursuing breaches?---I would not behave in any different manner.

PN469

Now, you were asked about the prevalence of Saturday and Sunday work and you said that that depended on a number of factors, one of which was flight times. Do you recall giving that evidence?---Yes, recently.

PN470

Would you agree with me that flights from overseas arrive at all hours of the day with some limitations because of curfew?---Well, clearly yes,there are international carriers flying in. I guess the context in which I raised flight times and the major players, again, was that it is a much larger issue for the major players who have their own aircraft and therefore their own flights and I think it was alluded to before that there are bulk, or extremely large amounts, of freight for a particular employer arriving at a particular time. The - the employers are players in the industry who rely on, or use, I should say rather than rely on, other international carriers have a wider spread.

PN471

You mentioned some companies that have their own flights. Are you aware of the evidence prepared and put in submissions to the Commission which nominates a number of companies, first to the hours of work? Have you seen that particular document? This is my letter of 19 February?

**** STEVEN JOHN BOWER XXN MR ROCHFORT

PN472

MR NUCIFORA: Your Honour, maybe if the witness can be given a copy of, I think it is, exhibit IRA2?

PN473

THE SENIOR DEPUTY PRESIDENT: Yes, well, if someone wants to give the witness a copy? I don't intend to give the witness my only copy because I, once again, asked the parties to ensure that I was in a position where we could avoid this problem.

PN474

MR ROCHFORT: I have one. Have you seen that document, Mr Bower? Has Mr Nucifora shown it to you?---The document - the document has been provided to me but I must admit at this point that I'm not 100 per cent familiar with it.

PN475

What are the companies that are nominated and clause 4.3?---I can see two underlined. Obviously Panelpina World Transport Pty Limited and Fritz Companies Pty Limited.

PN476

Any other?---I'm sorry. 4.3.3 Panelpina, Excell, UPS, Fritz Flyaway.

PN477

So that's all. The following companies operate aircraft into Australia: UPS?---I believe so.

PN478

Shenker?---I wasn't aware of that.

PN479

Koonanargle?---Wasn't aware of that.

PN480

Norman?---I've got to say I wasn't aware of that.

PN481

So you are not aware of whether they do or no?---Well, I understood that you were making a statement and on the basis - - -

**** STEVEN JOHN BOWER XXN MR ROCHFORT

PN482

No, I was asking you questions. Are you aware of whether or not they do operate a flight into Australia?---Sorry, okay, I understood that you were saying they do.

PN483

No?---I certainly was not aware that they do and - and I guess I was operating on an assumption that - that - well, no, that's as much as I can say.

PN484

Right?---I would have assumed that they didn't but that's not to say that that assumption - - -

PN485

Assumed that they did or didn't?---That they didn't but that's not to say that assumption was correct.

PN486

Now, you agree with me that the need for working Saturdays and Sundays is more prevalent in companies - for companies engaged in air freight who are respondent to the award?---That's correct.

PN487

Would you agree with me that the predominance of respondents to the award are air freight operators, international air freight operators?---Again, I couldn't give an absolute answer to that. I guess the majority of companies which I have dealt with do have at least some involvement in the international air freight forwarding side of the business but I couldn't - I couldn't respond in relation to the majority of respondents to the award.

PN488

So is it ordinary, for persons working in such a company, to work hours of work that includes Saturdays and Sundays?---I wouldn't say that it's necessarily ordinary. It's - it - look, it varies from organisation to organisation and - and some departments obviously are required potentially more often - more often than others.

**** STEVEN JOHN BOWER XXN MR ROCHFORT

PN489

Would that then make it ordinary for people to work on those hours?---I think - I think I was quizzed before about a definition of regular or irregular and I guess in the larger organisations you could say that it was regular but not very regular and - and you could say that in the smaller organisations, yes, it was required. Whether it would be - I wouldn't say that it would be necessarily ordinary and not necessarily - but not irregular. I mean, yes, there is - there is some requirement for it.

PN490

I put it to you that it's not necessarily a factor of the size of the organisation as much as the nature of the client. A very small company can have a particular client that happens to air freight, for example, late at night or on a Saturday or on a Sunday and has to service that flight. Is that your experience?---I guess it would depend upon the nature of the freight. I couldn't say that that is my experience because, depending on the nature of the freight, it may be - it may be required. There would be other instances where it would arrive and it would - it would go into the Qantas Bond and be picked up and cleared and have the paperwork done the following Monday or the following working day or whatever. So, it's - there's going to be a variation there, depends which Bond it's going into, et cetera.

PN491

You are not aware of customs requirements in relation to clearance of inward freight?---Well, I think you asked before about new customs requirements, et cetera, and I said that I'd only been back for a short time and so I couldn't comment on that.

PN492

If the customs requirement was that the freight had to be cleared within four hours, that would change your view, wouldn't it?---Well, I'm not aware that that is necessarily the customs requirement for all freight and I think that would surely vary depending upon the freight and the nature of the freight, et cetera. It's a moveable feast.

PN493

MR NUCIFORA: I think, your Honour, the witness has answered that question to the best of his knowledge.

**** STEVEN JOHN BOWER XXN MR ROCHFORT

PN494

THE SENIOR DEPUTY PRESIDENT: Yes, I think he has too.

PN495

MR ROCHFORT: You were asked regarding clause 25.4.2 - beg your pardon, 25.2.4 and about the hours there. You will concede with me, won't you, that the early morning shift is a - is an addition to this particular varied award, it wasn't in the previous award?

PN496

MR NUCIFORA: I'm sorry, your Honour, I just wanted to ask which award are we talking about? We went back to the Road Transport and now there's Existing Customs Clearing and then there's the draft order. I know that's a confusion in my mind but I'm just wondering whether there witness may have the same problem.

PN497

MR ROCHFORT: Well, I'm asking about the evidence you were given. The evidence is about his Honour's draft order. That was what the question you were asked was about in relation to 25.2.4?---Well, what you've asked - what you've asked is that an addition to the award.

PN498

To this particular award?---To this - to this draft.

PN499

To the making of this particular award. It wasn't in the previous award, was it?

PN500

THE SENIOR DEPUTY PRESIDENT: Well, the previous award is the existing award. Perhaps - - -?---Yes, the current.

PN501

Perhaps we will be specific with the questions.

**** STEVEN JOHN BOWER XXN MR ROCHFORT

PN502

MR ROCHFORT: Yes, yes, of course, it is. It is the award. It is not in the existing award, is it, that particular provision for an early morning shift?---Look, okay, I couldn't say with absolute certainty about that because - because my mind goes back to - I'm trying think in what context that New South Wales only provision sits there so I can't respond whether it's a new provision or not. I take it that it - that it is but I guess my comment at the time was directed to the fact that there seems to be some conflict between that provision and an earlier provision. That was - that was - that was the comment that I was making.

PN503

Yes and are you aware - has Mr Nucifora showed you my letter to him of 7 March 2003?---Mr Nucifora has provided me with it but I can't - - -

PN504

I beg your pardon, it's on the front of that material that you have.

PN505

MR NUCIFORA: No, your Honour, that's the 7 March letter as opposed to the exhibit of the - I think it's the exhibit of IRA2 which is the letter to yourself. The 7 March letter is the letter to myself.

PN506

THE SENIOR DEPUTY PRESIDENT: Mr Rochfort, I have got no idea what you are talking about in terms of documentation. Can you be a little more specific?

PN507

MR ROCHFORT: In the material that the witness has, the witness - included with that material is the letter from me marked IRA1 which was a letter from me to Mr Nucifora.

PN508

THE SENIOR DEPUTY PRESIDENT: I see, so this document that you are now about to ask the witness about is IRA1?

PN509

MR ROCHFORT: IRA1.

**** STEVEN JOHN BOWER XXN MR ROCHFORT

PN510

THE SENIOR DEPUTY PRESIDENT: Thank you.

PN511

MR NUCIFORA: That's the one we were concerned about earlier, your Honour, about being a without prejudice letter to myself.

PN512

THE SENIOR DEPUTY PRESIDENT: Well, I haven't heard the question yet, Mr Nucifora.

PN513

MR ROCHFORT: Well, it's not a without prejudice letter.

PN514

MR NUCIFORA: Sorry, your Honour?

PN515

THE SENIOR DEPUTY PRESIDENT: I haven't yet heard the question.

PN516

MR ROCHFORT: Are you aware - have you been shown that letter?---I was provided the letter, a copy of the letter, yes.

PN517

And do you agree with me that under Eleven - - -?---Sorry?

PN518

Do you agree with me that under the heading Eleven - Number 11 - I have proposed certain changes to the material that you have spoken to Mr Nucifora about which would appear to overcome your concerns?

PN519

MR NUCIFORA: I just wonder could Mr Rochfort be more specific in 11 and what he is referring to.

**** STEVEN JOHN BOWER XXN MR ROCHFORT

PN520

MR ROCHFORT: Well, there's a paragraph, a section of that thing, which has an identification number of 11 and that's the eleventh matter in the list that his Honour provided to us. If you go back to the first page you will see index number 1, et cetera, and then we get up to 11. Now, does that - does that proposal to Mr Nucifora address the concerns that you have in relation to your evidence about clause 25.2.4 and 25 - I beg your pardon - 25.2.4?---Well, it does not address the anomaly that I raised with - sorry, 25.2.1 it does appear to clarify that. I think the response that I gave was in relation to - I think the question was can you tell me what is different in relation to this award, so I was simply pointing out the differences. 25.2.4, however, I don't believe that does cover the anomaly that I believed existed in that 25.4.1.1, the draft speaks in terms of the employees starting work on a rostered basis at or after 5am and prior to 8am and the proposal is - - -

PN521

25 point what, I beg your pardon?

PN522

MR NUCIFORA: Sorry, it's 24.1.4.

PN523

THE WITNESS: The anomaly that I was referring to is provision 24.1.4.

PN524

MR ROCHFORT: And I was asking specifically - - -?---Which is the New South Wales provision that we discussed earlier and I don't believe that your proposal, 8am should read 6am, addresses the fact that employees - you've still got an anomaly there because that talks in terms of 6am and in 24.1.4 you're talking about:

PN525

Employees required to commence ordinary hours of work on a regular rostered basis at or after 5am and prior to 8am.

PN526

and those employees would only receive 10 per cent so the anomaly there still exists because you are speaking in terms of employees required to start at 6am would receive 15 per cent so there's an anomaly between the provisions and that simply what I was trying to point out in that instance.

**** STEVEN JOHN BOWER XXN MR ROCHFORT

PN527

So you are talking - - -?---So it still exists.

PN528

You are talking about the early morning shift, not the afternoon shift?---That's correct.

PN529

And that is the only place that the anomaly exists. It doesn't exist in New South Wales, does it?---Well, I believe it would because you are talking in terms of some employees who are regularly rostered to start work at 5am - anywhere between 5am and 8am would only received 10 per cent - and on the other hand, in the provision that you are speaking in terms of the early morning shift provides for reading number of award provisions in conjunction provides for a 15 per cent loading - where is it, sorry. 25.2.4:

PN530

...for any shift which commences between midnight and 8am.

PN531

The clause is currently - I'm sorry, you have lost me, Mr Bower. The clause is currently in the award - in the existing award, isn't it, about starting at 5am in New South Wales?---That's correct.

PN532

And I asked you whether you considered it was not unreasonable to extend that clause so it applied elsewhere. Why apply in New South Wales and nowhere else, that's what I'm saying?---Sorry, that's not the question that I was responding to at all.

PN533

Okay, well, you can respond to it now?

PN534

MR NUCIFORA: Your Honour, I'm reluctant to interrupt my friend but in relation to the early morning start, it might be worth mentioning in terms of so as we don't waste time on that, the union had conceded that that could apply to other states.

**** STEVEN JOHN BOWER XXN MR ROCHFORT

PN535

THE SENIOR DEPUTY PRESIDENT: Yes, thank you.

PN536

MR NUCIFORA: And we shouldn't waste time in terms of whether the New South Wales provision should now be preserved as it is. That was a concession that the union was prepared to make in our submissions. It is the other end of the day that was an issue and that has been raised with Mr Bower.

PN537

MR ROCHFORT: Well, if that is conceded, I won't pursue the matter because that is really what I was trying to have this witness concede; that it should apply in other states?

PN538

MR NUCIFORA: That was one of the areas of agreement between us, believe or not. There were some like that, that were agreed to.

PN539

THE SENIOR DEPUTY PRESIDENT: Thank you.

PN540

MR ROCHFORT: Mr Bower, you would agree with me, would you not, that a good number of the provisions in the proposed award which has already arrived in a draft form and was drawn by his Honour, are taken from, so to speak, the Federal Express Agreement?---There are a number of provisions which are from the Fed Ex Agreement, yes.

PN541

Has there been any - I don't want to go into this too far because to do so would be contrary to my undertaking - but is there anything inherently wrong with the translation of those provisions into the current award? I mean, does it create particular difficulties or create particular unfairness for the other respondents?

PN542

THE SENIOR DEPUTY PRESIDENT: Mr Rochfort, the witness is here as a union official. You are now asking him to answer a question that fundamentally requires that he make an estimate as to fairness or unfairness from an employer perspective. Quite simply, I think the question is out of the scope of the witness' expertise.

**** STEVEN JOHN BOWER XXN MR ROCHFORT

PN543

MR ROCHFORT: I will withdraw the question and ask this one: Is there any apprehension on your part that any of the provisions proposed, in the proposed agreement, create an unfairness for your members, a disadvantage for your members?---Yes, there is.

PN544

Why?---Because, as I indicated, there are employer - employers operating in Sydney who are abiding by the provisions of the current award who do - some on a reasonably regular basis, others on an irregular basis - require people to work on weekends, for whatever reason, they have some freight or an aircraft arrive, whatever the circumstances are and they are paid currently, as you have indicated - or I think they are currently paid time and a half for the first two hours and then double thereafter because it is an overtime shift and in those circumstances - in those circumstances the proposals that are being put would potentially see those people receive lesser penalty rates.

PN545

What if those persons, whom you have described, were paid under the exemption rate provision?---Sorry?

PN546

What if those persons, whom you have just described, who work on a weekend, for example, are paid under the exemption rate provision? Do they get an overtime payment?---So, higher than the exemption rate you are suggesting?

PN547

Well, at or above the exemption rate, yes?---There are, again, some individuals who are - well, okay, who would not - who would not receive those penalty rates. There are also some individuals who, in those circumstances, would choose not to work. Again, we are dealing with hypotheticals. There are - there is a particular organisation who uses the exemption rate to avoid shift penalties.

**** STEVEN JOHN BOWER XXN MR ROCHFORT

PN548

And do they pay their employees - this particular organisation which shall remain nameless - do they pay their employees correctly in terms of the exemption rate in the existing award?---The specific instance that I'm referring to is an organisation where they have their own salary review system and there are individuals who receive a salary review on the appropriate date, whether it be January or December or some time around that time of year, that then places them about the exemption rate provision in the award. So the net effect of that is that those individuals, as and when they work shift work, they usually stop working overtime but when - when they are working shift work, they cease to earn their shift penalties which actually means - which actually means a reduction in their take home pay even though they've received a wage increase. We then have the scenario that the National Wage Case goes through and the award is varied and all of a sudden these particular individuals are now below the exemption rate and their penalty rates and shift loadings resume.

PN549

Well, what are you trying to tell us? Are they - is the company in breach of the award or not?---No, this is one of the organisations that - that pays strictly to the award.

PN550

Pay strictly - - -?---They - they - they use - and the mere fact that they varied these individuals' conditions of employment, I would suggest to you, that they knowingly used the exemption rate provisions to their advantage.

PN551

Are they in breach of the award or not?---No, that particular organisation is not.

PN552

In your experience, do companies in this industry pay at or about the award rate or above it?---Again, certainly I can only speak for New South Wales and, no, the - the rates of pay in the industry are generally within Sydney - well, let's say Sydney because I'm not familiar with what may or may not be paid in the port of Newcastle, for example, but certainly in Sydney the rates of pay are, generally speaking, higher than the minimum award rates.

PN553

Do you have any idea how much higher?---I couldn't put an across the board figure on it - - -

**** STEVEN JOHN BOWER XXN MR ROCHFORT

PN554

I won't pursue it?--- - - - appropriately.

PN555

But for that company you were talking about, would it not be an advantage for the employees there, be they your members or not, if the salary provision - salaried rate provision was lifted from 20 per cent, as it is now, to 32_ per cent, as the employers have proposed for the making of a new award?---Quite frankly, I'd have to - I'd have to have a look at that on an individual basis and it would depend upon the level at which it was paid and it would also depend upon the - the amount of weekend work that any particular company and employer was - was to be engaged upon. There would probably potentially be circumstances where some would be disadvantaged depending on what level and how many shifts and weekend work they generally performed.

PN556

Well, in the event that all things remain equal and this company remained - and this hypothetical company that is paying 32_ per cent, remained in conformity with the award, the employees would benefit, wouldn't they?---Sorry?

PN557

MR NUCIFORA: Sorry, your Honour, the question is a hypothetical and we don't know how much and how many hours of work these people are working.

PN558

THE WITNESS: Yes and I think the assumption that you are making - potentially I'm not supposed to do this - I think the assumption that you are making is, when I say that the company is paying to the award, I think that you are also assuming that they are paying award rates and that's not the case.

PN559

MR ROCHFORT: Well, what rates are they paying?---This is a minimum rates award and they are paying above the award rates.

PN560

Well, they are not in breach of the award then, are they?---I didn't say they were.

PN561

No, you didn't, but I'm saying - what I am saying is if the only exemption rate they are paying is 20 per cent and that rises to 32_ per cent, surely the employees are better off? I mean, it's mathematical, isn't it?

**** STEVEN JOHN BOWER XXN MR ROCHFORT

PN562

MR NUCIFORA: We still don't - - -

PN563

THE WITNESS: It's - it's - - -

PN564

MR NUCIFORA: Your Honour, it's a hypothetical question and we don't know how many hours of work these people are working.

PN565

MR ROCHFORT: It's not hypothetical.

PN566

MR NUCIFORA: Mr Rochfort is going into submissions about annualised salaries rather than putting his question.

PN567

MR ROCHFORT: It's not hypothetical, your Honour, it's assuming that everyone - that all things are equal. There are safeguards built into the provision.

PN568

THE SENIOR DEPUTY PRESIDENT: I'm sorry, Mr Rochfort, I didn't follow the question either. I'm not sure where it's taking us.

PN569

MR ROCHFORT: Your Honour, it is taking us here: that the union have made a song and dance about - about what the particular rates should be for the salary provision. I have proposed 32_ per cent and I will be introducing evidence, through Ms Parrott, that she has made some inquiries and we have come up with some calculations that a correct amount representing the working of overtime is 32_ per cent. It was originally proposed at 30 per cent before I did those calculations and I was forced to amend my position. Now, what I'm saying to Mr Bower - and I can't understand why he is avoiding the question - is if someone is paid on an exemption rate provision, assuming that that keeps them above the award and consistent with the award, and all of a sudden, those things being equal, that is to say, they are not in breach of the award when they go from 20 to 32_ per cent, surely the employees are better off. Now, I can't understand why Mr Bower is wanting to be so difficult about it.

**** STEVEN JOHN BOWER XXN MR ROCHFORT

PN570

THE SENIOR DEPUTY PRESIDENT: Mr Rochfort, forgive me if I misunderstand something, but one of the basic principles behind the exemption rate is that it was a rate of salary paid such that the employee was not then entitled to certain other payments, such as overtime and the like.

PN571

MR ROCHFORT: Overtime, yes.

PN572

THE SENIOR DEPUTY PRESIDENT: Now, I'm having some difficulty understanding how the witness could answer your question unless you were to tell him what sort of overtime or hours parameters within which he should respond.

PN573

MR ROCHFORT: I'm asking him to respond in accordance with a hypothetical that he has put up. This company is currently paying such and such and such and such. He's paying an exemption rate of 20 per cent. Now, what I'm asking him is in relation to that company - - -

PN574

THE SENIOR DEPUTY PRESIDENT: Perhaps you could clarify the question then so that the witness knows exactly what question you are asking.

PN575

MR ROCHFORT: Thank you. Go back to the company you described me for a moment ago. It is observing the award, it's paying above the award and it's paying an exemption rate of 20 per cent. Will that company - will the employees of that company, I beg your pardon - not be better off if that call exemption rate for something else amount went from 20 per cent to 32_ per cent?---It would depend on what time that is - that is required to be performed and I can't speak unfortunately to every single employee and every single company. Even when I raise one specifically, I can't speak to their shift work rosters. I don't have them here in front of me and I'm not totally across them and I'm not totally familiar with them.

PN576

Mr Bower, bear with me. I'm sorry that I'm being so difficult to understand. That particular - - -

**** STEVEN JOHN BOWER XXN MR ROCHFORT

PN577

MR NUCIFORA: I'm sorry, your Honour, before the question is put - and I have only just found it - I didn't mean to interrupt him at that moment and he can continue on with the question but in terms of the existing exemption - - -

PN578

THE SENIOR DEPUTY PRESIDENT: If Mr Rochfort is entitled to continue on with the question, why are you interrupting?

PN579

MR NUCIFORA: Because it's a clarification of what the 20 per cent means.

PN580

THE SENIOR DEPUTY PRESIDENT: All right.

PN581

MR NUCIFORA: The 20 per cent is an exclusionary clause for the whole award except for a number of listed items.

PN582

THE SENIOR DEPUTY PRESIDENT: Yes, which is consistent with my summary of it.

PN583

MR NUCIFORA: Yes, that's the question I raise.

PN584

THE SENIOR DEPUTY PRESIDENT: Thank you.

PN585

MR ROCHFORT: In the same circumstances as you have described to the Commission and myself, exactly the same, working exactly the same work arrangements, would employees be better of with an increase in that amount from 20 per cent to 32_ per cent than they are now, in that particular company, all things remaining the same?---Are you proposing - sorry - I know I'm not supposed to ask questions but are you proposing the exemption rate go from 20 per cent to 32 per cent?

**** STEVEN JOHN BOWER XXN MR ROCHFORT

PN586

Well, we are doing away with the exemption rate but what we are proposing is an annualised salary where employees will be paid in recognition of all of those penalties folding in at a rate 32_ per cent higher as opposed to 20 per cent higher. That is what we have proposed. Now will you answer the question?---If they worked exactly the same shifts from now till eternity, which will not happen, and if - - -

PN587

How do you know?--- - - - they worked exactly the same amount of - - -

PN588

THE SENIOR DEPUTY PRESIDENT: Mr Rochfort, let the witness answer your question please.

PN589

THE WITNESS: And if they worked exactly the same amount of overtime from not till the eternity or the day they died then, yes, clearly, clearly that would provide an advantage.

PN590

Thank you?---However, clearly that is not going to happen and in the real world shifts, et cetera, vary.

PN591

Well, I put it to you, Mr Bower, that you don't know whether it's going to happen or not. In fact, your knowledge of the industry is very restricted?---That's your view.

PN592

Well, is it true or not?

PN593

MR NUCIFORA: Your Honour, it seems to me a basic question has been asked. If you are increasing an exemption rate from 20 per cent to 33_, or whatever it is, then of course that's got to be better than what's in the award now. It's a basic question and I think there is a basic answer to it.

**** STEVEN JOHN BOWER XXN MR ROCHFORT

PN594

THE SENIOR DEPUTY PRESIDENT: Mr Rochfort, can we move on?

PN595

MR ROCHFORT: Yes, we can. No further questions, your Honour.

PN596

THE SENIOR DEPUTY PRESIDENT: Mr Nucifora?

PN597

MR NUCIFORA: No, I have no further questions.

PN598

THE SENIOR DEPUTY PRESIDENT: Mr Bower, thank you for your evidence. You are released.

<THE WITNESS WITHDREW [2.39pm]

PN599

THE SENIOR DEPUTY PRESIDENT: Does that complete the evidentiary case that you propose to bring, Mr Nucifora. It does, your Honour. I just wanted to raise some procedural matters. I was still of the view that this matter could have been finalised today. I don't know how long Mr Rochfort is proposing that he go through any witness evidence, and I understand that, but aside from that, I would say, from our point of view, that our submissions - verbal submissions - would not go for longer than an hour, probably less - half an hour to an hour in relation to what is outstanding and what we have put in our written submissions and substantiating that. It wouldn't be any further evidentiary material but we would go to, of course, authorities that we have referred to. If your Honour pleases.

PN600

THE SENIOR DEPUTY PRESIDENT: Thank you.

PN601

MR ROCHFORT: I don't know what that means. I don't intend to be long with Ms Parrott from an evidentiary point of view. I should say this though; that a further attempt was made in the break to resolve matters. I am aware that the issues in contention are very narrow or there are very few in number, but are quite important. Your Honour, I am not in a position, subject to where your Honour sits, for consenting to the matter going much beyond the normal conclusion time. I have a brother very seriously ill in hospital and I have undertaken to go out and try and see him. I have got to see the doctors there before 5, so I have some personal difficulties if the matter goes too long.

PN602

THE SENIOR DEPUTY PRESIDENT: So what time are you asking that the matter - what time are you asking that we break, Mr Rochfort?

PN603

MR ROCHFORT: 4, the normal time, your Honour. Sorry about that.

PN604

THE SENIOR DEPUTY PRESIDENT: Yes. It is not my normal time.

PN605

MR ROCHFORT: I beg your pardon, your Honour.

PN606

THE SENIOR DEPUTY PRESIDENT: But let's see how far we get. Thank you.

PN607

MR ROCHFORT: The matter was listed for two days and I made my arrangements on that basis.

PN608

THE SENIOR DEPUTY PRESIDENT: Yes, indeed.

PN609

MR NUCIFORA: Your Honour, I don't dispute that the matter was listed for two days and we would be seeking to do what we could to finalise this today but that is by 5 o'clock.

PN610

THE SENIOR DEPUTY PRESIDENT: Let's see how far we get.

PN611

MR NUCIFORA: I appreciate that, your Honour.

PN612

THE SENIOR DEPUTY PRESIDENT: Mr Rochfort?

PN613

MR ROCHFORT: Thank you, your Honour. From the evidentiary point of view from the company - of the employers, rather, I propose to call Ms Parrott. Now, by and large, Ms Parrott's evidence will be to confirm and provide her research material into the statements that have been made in submissions, so I don't expect that will take very long at all. She will introduce some more documentation, she will talk about the method she has adopted to - - -

PN614

THE SENIOR DEPUTY PRESIDENT: Well, let's hear what she is going to say.

PN615

MR ROCHFORT: - - - over the information

<CARLY NICOLA PARROTT, SWORN [2.40pm]

<EXAMINATION-IN-CHIEF BY MR ROCHFORT

PN616

MR ROCHFORT: Ms Parrott, please state your full name and your address?---My name is Carly Nicola Parrott. My address is 22 Greystoke Street, Wheeler Heights in the state of New South Wales, post code of 2100 - I'm sorry, 2097. I apologise for that.

PN617

2097 and tell the Commission your particulars of your employment?---I'm a part-time industrial adviser with IR Australia.

PN618

And is it true to say that you basically work for me?---Yes.

PN619

Now, Ms Parrott, at my request to you - or direction to you - you prepared some material for submissions to his Honour in this matter which was in the nature of supporting material for submissions, is that correct?---Yes, it is.

PN620

And is the result of that material that you prepared contained in the correspondence - I think you have it there - addressed to his Honour dated 19 February?---A summary of the results of my research is contained. There is perhaps one document which may need to be passed up to his Honour with respect to - it's about 30 odd pages of details.

PN621

Yes, well, I'll get that in a moment.

PN622

MR NUCIFORA: Your Honour, if I may, if Mr Rochfort is referring to exhibit IRA2 and material that is attached to that, we certainly - we don't have a problem with that but there are questions raised of Ms Parrott, as in fact I did, in terms of Mr Bower, I have no problem with that. In terms of other documentation that we haven't yet seen, I do have a problem with that.

PN623

THE SENIOR DEPUTY PRESIDENT: Yes, well, that documentation is yet to be tabled so let's see what happens from now.

**** CARLY NICOLA PARROTT XN MR ROCHFORT

PN624

THE WITNESS: If I might add that the documentation which was provided to your Honour - - -

PN625

THE SENIOR DEPUTY PRESIDENT: Ms Parrott, I might get you to answer Mr Rochfort's questions, thank you?---Sorry, Commissioner. I will be quiet.

PN626

MR ROCHFORT: Ms Parrott, you were with me also last Thursday with Mr Nucifora?---Yes, I was.

PN627

And you were there principally to discuss the material that had been forwarded to his Honour. That material had been supplied to Mr Nucifora previously?---Yes, it was.

PN628

And, Ms Parrott, do you produce, or can you produce material obtained from the companies whom you investigated or who you inquired of, which led you to draw the submissions that you did?---I can produce material for two of the companies.

PN629

For two of the companies?---Yes.

PN630

You do so now?---Yes.

PN631

I ask that they be tendered, your Honour.

PN632

MR NUCIFORA: Your Honour, we oppose the tendering of that documentation. As I said, anything that is in this documentation here I have no problem with - asking questions in relation to what might be in the other documentation I have no problem with in terms of the way we treated our witness. I am only asking for an equitable approach in terms of procedures.

**** CARLY NICOLA PARROTT XN MR ROCHFORT

PN633

THE SENIOR DEPUTY PRESIDENT: But have you seen the document that Ms Parrott presumably has, Mr Nucifora?

PN634

MR NUCIFORA: If it's documentation in relation to notes of the meeting - - -

PN635

THE SENIOR DEPUTY PRESIDENT: Perhaps Mr Nucifora could be shown the documentation?

PN636

MR NUCIFORA: Sir, I'm sorry, I have seen this documentation. I don't have it but I have seen it and I don't have any problem with it.

PN637

THE SENIOR DEPUTY PRESIDENT: You don't have a?

PN638

MR NUCIFORA: I don't have a problem with that being referred to - - -

PN639

THE SENIOR DEPUTY PRESIDENT: Provided to me.

PN640

MR NUCIFORA: - - - in witness evidence, if your Honour pleases.

PN641

THE SENIOR DEPUTY PRESIDENT: Thank you.

PN642

MR ROCHFORT: There is nothing mysterious about it, your Honour. They are just - Ms Parrott, perhaps you might tell his Honour just what those documents are?

PN643

THE SENIOR DEPUTY PRESIDENT: Perhaps I might be given a copy?

**** CARLY NICOLA PARROTT XN MR ROCHFORT

PN644

MR ROCHFORT: I beg your pardon?

PN645

THE SENIOR DEPUTY PRESIDENT: Perhaps I might be given a copy?

PN646

MR ROCHFORT: You might? Hasn't anyone given you a copy, your Honour? I apologise for that. Ms Parrott, would you please give your Honour - mine is marked.

PN647

THE SENIOR DEPUTY PRESIDENT: Is Ms Parrott going to be able to answer the questions, that you have of her, without the document?

PN648

MR ROCHFORT: Yes. It's just - I just want to ask the question of Ms Parrott, can you tell his Honour just what those figures are?---Yes, your Honour, the cover sheet which was actually supplied to your Honour in the documentation, I think, of 19 February was a summary that I did of those 30 odd pages which is essentially an Excel spread sheet from Fritz Flyaway, which is now UPS, that was provided to me by their operations manager. I think it's Matthew Mahoney. I produced a summary for your convenience and in the 30 odd pages there I have highlighted the days which are Sundays. You will see in the summary sheet that I did up, the first column says the number of loads that come in on a Sunday as opposed to all the other figures in the sheets which are the other days of the week. From - from those figures, it's clear that almost half, if not more of their freight, comes in on a Sunday. Once you include a Saturday into that as well, which there doesn't seem to be as much in general, you have easily almost up to three quarters of the freight over the entire week comes in on the weekend and that was over a period of three months from October to December of last year.

PN649

THE SENIOR DEPUTY PRESIDENT: Is there any objection to my labelling this document IRA3 and noting that it is background information relative to IRA2?

PN650

MR NUCIFORA: No, your Honour.

**** CARLY NICOLA PARROTT XN MR ROCHFORT

PN651

MR ROCHFORT: Just one other question, Ms Parrott. You did also speak with a number of other companies?---I did.

PN652

In the industry?---I did.

PN653

And obtained further information?---I also received, with respect to the other documentary evidence from Panelpina, which was a graph and - and a table showing, again, the freight volumes that came in on a weekend as opposed to the week day and that was included in the letter of 19 February. I believe your Honour has that in front of you. To answer your question directly, I did speak to a number of companies who were either not in a position to provide me with documentary material, because it is quite an effort to put those sort of figures together, and I had a lot of background information or discussions with Peter regarding the nature of - of the industry to give me a head start with things and then I spoke to about six or seven companies myself asking the same sort of questions which the evidence there shows.

PN654

Thank you.

PN655

THE SENIOR DEPUTY PRESIDENT: Mr Nucifora?

PN656

MR NUCIFORA: Thank you, your Honour.

<CROSS-EXAMINATION BY MR NUCIFORA

PN657

Ms Parrott, I wonder if I could take you to the Fritz Flyaway documentation. I think that was - I've forgotten the exhibit number but if I could take you to that, I wonder if you could explain - - -

PN658

THE SENIOR DEPUTY PRESIDENT: It is IRA3.

**** CARLY NICOLA PARROTT XXN MR NUCIFORA

PN659

MR NUCIFORA: IRA3, sorry. Ms Parrott, I wonder if you could explain to the Commission just what constitutes a load? I'm unclear about the technicalities in this industry and whether a load is the same Fritz Flyaway all the way through here or are there different dimensions to these loads?---There would obviously be different dimensions to the loads. What I asked of the companies was to provide me with documentation showing the number or the amount of freight that came in on the weekend as opposed to during the week, was the question I specifically put to each of the companies. I would assume, although I couldn't say with absolute certainty, that these loads would be different volumes and that each of those would be coming to a different - would have a different number, a different dispatch number on that. Again, I'm not totally familiar.

PN660

These are the same loads you are talking about on a Sunday on the front page, for example?---Yes, well - - -

PN661

These could be different sizes?---Yes.

PN662

And therefore would that mean that different types of employees may handle large loads as opposed to smaller loads? I'm referring in particular to the TWU employees that we have in this industry?---Well, from what I can gather the - the seven odd - or the no employees that at UPS that you have at the moment - members - assuming that you perhaps had some there, I don't know specifically who your members are what type of work that they're involved in. I'm assuming that - - -

PN663

Sorry, I - Ms Parrott, what I was after was - don't worry about whether we've got members there or not. In terms of the award and the employees that are covered by that award, and at this point it's people - I guess we are referring to people that might be under 20 per cent - the exemption rate but just think of clerical administrative employees covered by the classification structure in the award; how many of those employees would do the work of all of these loads or would it just require TWU employees?---Again, you are asking me about TWU employees. As far as I know, I don't know whether you have any TWU employees at Fritz Flyaway.

**** CARLY NICOLA PARROTT XXN MR NUCIFORA

PN664

If you've got different sizes, is it not possible that there are - if it's a smaller load that we're talking about, that TWU employees could in fact look after that?---Why exactly should - - -

PN665

THE SENIOR DEPUTY PRESIDENT: Mr Nucifora, I think the witness is emphasising that she is not aware, as I understand it, which employers have TWU employees and which ones do not so you might need to rephrase the question.

PN666

MR NUCIFORA: Sorry. Are you aware of - there's different size loads that you mentioned before?---I don't know whether there are or there are not. There may be.

PN667

But you are not sure whether these are all the same size?---No, I'm not sure.

PN668

Would one load - if we go to the question - or pallet necessitate a clerk being present, someone covered by that award - the award before you?---One would assume so, yes.

PN669

And why is that?---Again, as I said, my experience with this is in gaining this information which was provided to me by the operations manager. If you want me to go into some specific, I really don't think I am going to be able to assist the Commission or yourself with any specific questions to do with freight loads and volumes and things like that, so, I'm sorry, any question like that, I won't be able to help you out.

PN670

Yes. So, would it be fair to say that you probably know less than Mr Bower in relation this industry?---It would be fair to say I'm 22 years old. Mr Bower probably has a few years on me so, yes, it would be fair to say. However, as I said when I got up here, my assistance to the Commission in this is on these figures in front of me and that's what I hope to be able to assist the Commission in.

**** CARLY NICOLA PARROTT XXN MR NUCIFORA

PN671

Would you agree or disagree that - would there be some of these loads that could go into the QF Bond to be dealt with on Monday?---As far as I am aware - and again, your requesting me to give information on things which I do not know of - is that there - is that any freight that is not cleared within four hours incurs a significant storage penalty and it is those penalties that make it quite imperative that companies such as Fritz and Panelpina and Excell and Koonanargle get the freight out pretty much as soon as it arrives. Now, I'm not - I don't know how this Qantas Bond works. I'm sure that some companies - some respondents may have access to that but quite a lot may not and I guess that's my answer to that.

PN672

Yes, Ms Parrott, but you've said you're not sure about the difference between TWU employees handling the loads direct and clerical employees. You don't know the difference?---I'm listening to what you said to me before and that was currently - or to what the evidence of Mr Bower is that there are currently no employees at UPS - Fritz.

PN673

THE SENIOR DEPUTY PRESIDENT: I think the witness has answer that question - and she'll tell me if I've got it wrong - that she's not aware of which companies employ members of whichever union. Is that correct, Ms Parrott?---Yes.

PN674

MR NUCIFORA: And you don't know what type of employees they are?---Well, clerical administrative staff, sort of. I don't understand the question.

PN675

Are you saying that clerical administrative staff are needed on Sundays for all these types of loads?---Yes, they are.

PN676

How do you know that?---Because it's operational requirements of the business. You need people there to dispatch these loads. Again, you're asking me to go into things.

PN677

Yes, because you don't know the difference between a TWU employee and a clerk - a clerical employee in this industry?---Are you saying - are you saying a TWU employee as in a union member?

**** CARLY NICOLA PARROTT XXN MR NUCIFORA

PN678

No, no, I'm talking about an employee covered by the he TWU award?---I'm sorry, I was getting confused. I thought you were saying - - -

PN679

I'm sorry, I should have made that clearer?--- - - - a TWU, which is - I see that as being a union member.

PN680

MR ROCHFORT: Look, just - - -

PN681

MR NUCIFORA: No an employee covered by the TWU - the Transport Workers Freight Forwarding and Customs Clearance Award 2000?---I'm sorry, I didn't quite see how that responded to a TWU member. All I can attribute - all I can attest to today is what I asked the companies to provide me with and that this is the documentation which was provided to me and that based on this, this is the submissions that I made the submissions.

PN682

But there is no distinction in this about what work is done by TWU - by people that might be covered by the - - -?---On these particular figures?

PN683

No?---It's quite clear that there isn't.

PN684

No, okay?---This is specifically the freight loads that come in on the weekend.

PN685

The other thing, in terms of the material provided and attached to the submission, which I think is in IRA2, I understand that there are some companies that were referred to there, in particular, Panelpina, Fritz, UPS, Excell - I think Shenker was mentioned but I don't see it here - it was mentioned. Did you make inquiries with any other companies about their arrangement - their hours of work arrangements and work on the weekends?---They were the main companies which I made inquiries with. They are people or companies with which Peter, in particular, has a lot of correspondence with. We do a lot of work for them in particular and I think it would be fair to say that they are relatively indicative of some of the

**** CARLY NICOLA PARROTT XXN MR NUCIFORA

larger to medium size freight companies. So, no, I didn't make inquiries with every single person on the respondency list or company on the respondency list. However, I did make efforts to contact people. However, I was only able to get two companies to provide em with documentary evidence due to the significant time it would take to get all this sort of information together.

PN686

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

PN687

THE SENIOR DEPUTY PRESIDENT: Mr Rochfort?

<RE-EXAMINATION BY MR ROCHFORT

PN688

MR ROCHFORT: Thank you. Ms Parrott, from your understanding of the industry, these companies are all involved in international freight forwarding?---From my understanding, yes.

PN689

Exporting and importing?---Mm.

PN690

From your understanding - do you know from your own knowledge whether or not each of these operations requires a customs clearance?---I would assume so, yes.

PN691

And do you know from your own knowledge who it is that performs customs clearances - a clerical employee or a transport worker employee?---In all honesty, I wouldn't be sure of which one.

PN692

You wouldn't be sure, okay. Thank you, no further questions, your Honour.

PN693

THE SENIOR DEPUTY PRESIDENT: Ms Parrott, thank you for your evidence. You are released.

<THE WITNESS WITHDREW

PN694

MR ROCHFORT: That is the evidentiary material from the employers.

PN695

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Rochfort. Now, again, on the basis that I'm proceeding to see how far we can possibly get in the next hour or so, I would re-emphasise to the parties that I've read their submissions and what I propose that we do now is work through the items 2 to 16. Depending on the issue, I would ask either you, Mr Nucifora, or you, Mr Rochfort, to comment first of all. I don't want you to repeat your submissions. You can take them as read but you can introduce anything new to me or, indeed, reference any of the witness evidence that we have received today. Mr Nucifora, would you like to open the proceedings in relation to clause 9?

PN696

MR NUCIFORA: Thank you, your Honour. Your Honour, we refer you, of course, to exhibit ASU - I think it's ASU1 in relation to the letter of 11 February and in that we refer to our concerns in clause 9 of the draft award before you. I will just get a copy of that. In clause 9 at the moment it has a list of facilitative provisions and - - -

PN697

THE SENIOR DEPUTY PRESIDENT: And effectively you are saying you want those or similar provisions rebuilt into the award?

PN698

MR NUCIFORA: Sorry, those facilitative provisions?

PN699

THE SENIOR DEPUTY PRESIDENT: Yes.

PN700

MR NUCIFORA: No, your Honour, no, we are saying that is a check list of the facilitative provisions. What we are seeking to include is the normal preamble that we have with enterprise flexibility clauses and if I may refer you there to the Award Simplification Decision. In that decision it does refer to - this is in P7500 - in, once again, clause 9 there, an enterprise flexibility provision. The unions were seeking a larger clause but in clause 9 of that decision the Bench goes to some substantial amendment and reducing that down to recognising that employees - there ought be a consultative mechanism and the opportunity to make agreement. And that's in the, of course, in the all important Award Simplification Decision in the Hospitality Award.

PN701

It is worth mentioning too, earlier on in this matter we referred to the Transport Workers Award, that has been simplified, and that's in AW801394 and in that award at clause 9 there is an enterprise flexibility provision in 9.1 and then it goes on to 9.2 listing what they are as you have here in clause 9.

PN702

THE SENIOR DEPUTY PRESIDENT: Yes, in much the same way as the Metal Industry Award contains such a provision.

PN703

MR NUCIFORA: Yes and what I was seeking to do was table a copy of what we believe should be included in there, particularly as we've sought to be - in the process of conciliation and in the process of simplification of this award, we've sought to include some flexibilities that may not have been there before, some of it, we'd have to say, much to our own detriment because it resulted in a number of disputes between myself and Mr Rochfort on behalf of our organisations. But if we are going to have facilitative clauses, we say, your Honour, that the - sorry, if I may table that as an exhibit before you?

PN704

THE SENIOR DEPUTY PRESIDENT: Yes, I'll mark that as ASU2, noting that it's a union draft of clause 9.

EXHIBIT #ASU2 UNION DRAFT OF CLAUSE 9

PN705

MR NUCIFORA: Yes, and what is included in there, your Honour, is no change to the check list of facilitative provisions in 9.2 and in 9.1 the standard enterprise flexibility provision that goes to employer and employees reaching agreement in the enterprise. No, we know, as per the award simplification decision, that that very much reflects section 113 but we say it's important in the award to ensure that employees and line management, of course, when they're aren't - I've got to say, there aren't many IR experts in this industry except for Mr Rochfort and - - -

PN706

THE SENIOR DEPUTY PRESIDENT: It begs the question of if the employer and the employees agree to a particular provision, I presume then the parties would want to have that included as an agreed appendix to the award, would they?

PN707

MR NUCIFORA: Well, no - well, it doesn't - we would say it doesn't contemplate. If we look at the award simplification decision, that was the reasoning that went into the metal industry provision in terms of recognising the schedule because of the concern about the loss of the employee entitlements. In the award simplification decision, it goes to referring to, as mentioned, section 113A and B. They have decided on a simpler clause which goes to recognising the Acts dealing with the freedom of association, the fact that:

PN708

A significant number of enterprises and work places are unlikely to be unionised.

PN709

I think that's important here. We have certainly heard witnesses' evidence and I don't think we would dispute that this is a highly un-unionised industry:

PN710

The Commission must decide in each case whether the award should be amended and the desirability of permitting parties as much freedom as possible in deciding whether to establish consultative processes and the form any such process should go.

PN711

They went to brevity and I think the TWU Award, which is the other main industry award in this industry, went to brevity as well. In fact, it's probably - - -

PN712

THE SENIOR DEPUTY PRESIDENT: Yes, look, I understand the provisions, Mr Nucifora.

PN713

MR NUCIFORA: Yes.

PN714

THE SENIOR DEPUTY PRESIDENT: The question I'm asking is actually a serious one.

PN715

MR NUCIFORA: Sorry, yes, in terms of - - -

PN716

THE SENIOR DEPUTY PRESIDENT: Let me give you a potential example. Let's say, for instance, that we include such a provision in the award at 9.1, and the employees of Flyaway reached agreement with the employer, possibly involving the union, who knows, but if as a result of that agreement they agreed that Saturdays and Sundays could be worked in ordinary time, what is it that you say then that the proposed clause, 9.1, provides for?

PN717

MR NUCIFORA: 9.1 provides for basically three arrangements under the Act. Either one or two of the certified collective agreements, section 170LK or LJ, or an AWU but what is prevalent in the industry, of course, is common law contracts. We are not promoting, obviously, AWAs and common law contracts, but the Act allows for that type of a - - -

PN718

THE SENIOR DEPUTY PRESIDENT: But 9.1, Mr Nucifora, goes to how the award will be varied. It is quite specific.

PN719

MR NUCIFORA: Sorry, your Honour, in - - -

PN720

THE SENIOR DEPUTY PRESIDENT: I'm referring to the 9.1 that's contained in ASU2 and the opening sentence says that:

PN721

Where an employer or employees wish to pursue an agreement at the enterprise of work place about how the award should be varied -

PN722

MR NUCIFORA: Yes, I would read that in the context of enterprise bargaining as we now know it. Enterprise bargaining is now - - -

PN723

THE SENIOR DEPUTY PRESIDENT: That is not what it says.

PN724

MR NUCIFORA: Well, your Honour, in terms - - -

PN725

THE SENIOR DEPUTY PRESIDENT: I mean, you can read it that way but the English doesn't support your interpretation.

PN726

MR NUCIFORA: Yes, I understand what you're saying.

PN727

THE SENIOR DEPUTY PRESIDENT: I'm simply asking and, frankly, I have no objection whatsoever to including words such as these. I'm just anxious to know what it is the parties mean by them.

PN728

MR NUCIFORA: If I can refer you to what is currently in the - I'm looking at the Hospitality Award and that has the same - that has exactly the same clause in cases - - -

PN729

THE SENIOR DEPUTY PRESIDENT: It does indeed.

PN730

MR NUCIFORA: Yes, it does, it does and I must say, your Honour, I hadn't contemplated that before but my understanding was 113A and 113B replaced the old award modernisation type clause. But at that time, the reason why we have an appendix B, is that we didn't have enterprise - we didn't have enterprise bargaining as we now know it and we didn't have - - -

PN731

THE SENIOR DEPUTY PRESIDENT: I understand what you are saying. I'm simply looking at the clause.

PN732

MR NUCIFORA: Well, I think, your Honour, the only award that we're aware of that has a separate schedule only out of the major decisions, if you like, in award simplifications, the metal industry decision - - -

PN733

THE SENIOR DEPUTY PRESIDENT: Well, it is a fairly major award.

PN734

MR NUCIFORA: Yes, and the reasoning in that went to the concern about the loss of entitlement for employees and particularly that argument got up. We would say here that, in terms of appendix B, that it's - the employer have raised the concern about their current arrangements and we raise concerns about - and as well as the loss of entitlements but I wouldn't read that clause necessarily, your Honour, meaning that the award should be varied.

PN735

It would seem to me that, getting back to what was said earlier in the award simplification decision, having a separate appendix, as they did there, referred to in appendix A, the say:

PN736

This is a clause upon which the parties should confer. It is undesirable that the award should have an appendix which applies to one employer only.

PN737

and I think that should be the guiding principle and if you are going to have individual employer arrangements they vary the award, that they should be in agreements and, of course, we didn't have enterprise bargaining agreements - certified agreements - at the time that the appendix B was inserted into this award.

PN738

THE SENIOR DEPUTY PRESIDENT: Yes, I understand that.

PN739

MR NUCIFORA: It raises other problems too, your Honour, because by going down the track of an enterprise bargaining agreement, there are the two streams of a non-union collective agreement such as - well, the section 170LK, whereas, if we were going to pursue that type of agreement as an award variation to an award like this, then we start to become directly involved and we might be opposed as, if you like, the custodian of the award - as the union - oppose any non-union, if you like, agreement that then comes up as an award clause.

PN740

I think - your Honour, I understand what you are putting and I think - I believe that Senior Deputy President Marsh's decision - the Metal Industry Decision - really went to this argument of people losing entitlements and it would seem to me that elsewhere where this has been referred to, including the award simplification decision, if we're going to simplify and rationalise awards then we really should be taking out those things such as things that you would normally have in a certified agreement that apply to one work place. Of course, that's consistent with item 51(7)(a):

PN741

The Commission must also review the award to determine whether or not it meets the following criteria...(reads)...are to apply.

PN742

It is more a variation of how the award provisions are to apply and that comes up under your standard facilitative provision. In putting that standard clause, I wouldn't like to think that that prejudices our position in terms of appendix B. I see them as being quite distinct. I still believe that the approach that we've taken is a balanced one with appendix B and it's consistent with the major decisions that - and, of course - well, the award simplification decision - I don't believe it's inconsistent with the Metal Industry Decision and there's the ACT Clerks Award where there was - that was one of the - in fact, I have to say that award was the first clerical award that was simplified in the Federal Jurisdiction and there was clearly a view taken by the Commissioner that, not just obsolete clauses, but clauses that went to specific employers should come out and we should have, in a safety net award, in an industry - in that case it's a common rule award in the ACT - we should only have your safety net requirements, most of which follow, of course, test case standards.

PN743

So, we say that it's not inconsistent to put in an enterprise flexibility provision which it mirrors the TWU provision. I can table an extract from that award.

PN744

THE SENIOR DEPUTY PRESIDENT: Yes. No, thank you, I understand the point.

PN745

MR NUCIFORA: Yes, the award code is AW801394, that's the Transport Workers Award of 2000. Your Honour, I did fail to mention just as a header before all this - although I did mention it earlier today - much - I think we've gone through a lot of sole searching since your decision - since you've handed down your decision and you drafted the award and the more we looked at, the more we realised - and I don't know whether there is any opposition from any of the other parties, including Mr Rochfort - that there isn't any need for wholesale change. I think most of the submissions you hard before 30 August are probably the same sorts of submissions that we are going through now but we are raising some concerns and, of course, clause 9 was one of them. I have referred to it as tweaking some of these provisions to make sure that things don't fall through the gap. I don't think I've suggested in any of our submissions that we are seeking to undermine the - - -

PN746

THE SENIOR DEPUTY PRESIDENT: Very well.

PN747

MR NUCIFORA: Sorry - to make wholesale changes to the draft. I might add in 2, we referred to other awards. I won't take you to those but they clearly have that same provision in relation to enterprise - - -

PN748

THE SENIOR DEPUTY PRESIDENT: Yes, well, as I said, you needn't repeat all of your submissions.

PN749

MR NUCIFORA: No. Clause 9, the noticeboard - - -

PN750

THE SENIOR DEPUTY PRESIDENT: No, can we just ask you to stop there for a moment, Mr Nucifora.

PN751

MR NUCIFORA: Sorry.

PN752

THE SENIOR DEPUTY PRESIDENT: I'm going to ask Mr Rochfort if he would care to comment on clause 9.

PN753

MR ROCHFORT: Your Honour, our position is as contained or summarised in the letter of 7 March. We don't believe there is a need for a consultative mechanism provision. The reason is that we believe that it exists anyway - that there's always, because of the operation of section 170 generally and the subsection of that, the ability for parties to meet and to talk about enterprise flexibility provisions which appeared in B germane.

PN754

There is no provision in this award, your Honour, for no further claims.

PN755

Now, it would concern me, although I'm not going to address you on it at length about it, if a clause went in, in that way. I have no objection to a clause going in, just to demonstrate how reasonable I am and easier to get along with than Mr Nucifora, but I would be concerned about if an agreement related particularly to how an award should be varied. I believe that the enterprise flexibility clause should be flexible enough to allow agreements to be reached at the work place, relating to the way that the enterprise of the work place operates and with the deletion of those words we could - we could live with the clause, subject to what your Honour has to say, but mindful that we don't think it's necessary, your Honour.

PN756

THE SENIOR DEPUTY PRESIDENT: Yes, thank you. The notice board provisions in clause 9.

PN757

MR NUCIFORA: Yes, your Honour. When we simplified other awards - and some we've mentioned here - if there has been a pre-existing notice board provision, normally they refer to the union representatives then we sought to redraft them and if I may table a copy of an extract of the - of the Clerical and Administrative Employees Health Insurance Industry Award. The sort of notice - what we'd call a balanced notice board provision.

PN758

THE SENIOR DEPUTY PRESIDENT: Yes, now, can I indicate to you that the deletion of the notice board provisions may, in fact, be an oversight on my part as I recall - or I now understand - that clause 26 of the existing award contains a provision relative to notice boards.

PN759

MR NUCIFORA: Yes, your Honour.

PN760

THE SENIOR DEPUTY PRESIDENT: On that basis, I can advise you that I intend to vary the draft order so as to insert a provision relative to notice boards. So I'm open to argument on what that provision should say.

PN761

MR NUCIFORA: Yes, thank you, your Honour. What was there is considered not allowable because it refers to the union and union employees. What I am about to, if I may, table is an extract of the Clerical and Administrative Employees Health Insurance Industry Award, a simplified award which is - has a - has what we would call, as I recall, I think it's the Metal Industry Award standard clause. That's just an extract. It gives you there, of course, the award number at the top and I have referred to other awards either - I probably should have provided a copy of the Clerical and Administrative Employees Victorian Award. That's the standard award we quite often refer to for - not just in terms of simplification but in particular the classification structure. That has a notice board provision similar to that one there.

PN762

Your Honour, in terms of clause 14.1.6 - - -

PN763

THE SENIOR DEPUTY PRESIDENT: Once again, Mr Nucifora, let me stop you.

PN764

MR NUCIFORA: I'm sorry, I won't put anything further on that.

PN765

THE SENIOR DEPUTY PRESIDENT: Thank you. Mr Rochfort, have you got anything to say on the issue of notice boards?

PN766

MR ROCHFORT: We have no - I have no objection to the clause, your Honour. There is one in the existing award which is appropriate, seldom used.

PN767

THE SENIOR DEPUTY PRESIDENT: Very good. Mr Nucifora?

PN768

MR NUCIFORA: Thank you, your Honour. Look, your Honour, we stand by what we put in relation to garden leave. In a letter to yourself after your decision, we outlined that, consistent with your principle about retaining existing award provisions that were otherwise allowable, we would say - and we have sought to take a consistent approach - garden leave is a foreign provision that I've not seen in another award. I'm not disputing that it exists. We would argue at common law that some of the things - the concerns - that have been raised by the employers here, that you would normally deal with that, and of course there's restraint of trade and all sorts of things that - and we would not be opposed to this question of confidentiality while someone is on notice but it does raise other questions in relation to the standard leave clause and we were not in a position to consent to that particular provision.

PN769

I have some concerns about someone who agrees to garden leave and then starts working for another employer and is then quite restricted in what they can do. I believe that common law assists the employers in this regard and certainly the union wouldn't be seeking to encourage employers to breach confidentiality while they are still in the employ of a particular employer. We say that the existing termination clause should stay as it is. Thanks, your Honour

PN770

THE SENIOR DEPUTY PRESIDENT: Mr Rochfort?

PN771

MR ROCHFORT: I advised Mr Nucifora and I sent a copy to yourself, your Honour, that the expression "garden leave" unfortunately I can't claim to have invented.

PN772

THE SENIOR DEPUTY PRESIDENT: Yes, I read that. It's a great pity because it's a very interesting expression.

PN773

MR ROCHFORT: Yes, but nevertheless your Honour has where it came from. My argument in favour of it, if we ask for its inclusion and I'll give your Honour an exhibit proposing how they clause should read standing alone.

PN774

THE SENIOR DEPUTY PRESIDENT: I'll mark that as IRA4.

EXHIBIT #IRA4 EMPLOYER PROPOSAL FOR GARDEN LEAVE CLAUSE

PN775

MR ROCHFORT: Does your Honour want the references to the garden leave although I don't think much hangs on it.

PN776

THE SENIOR DEPUTY PRESIDENT: I think you've sent me those, Mr Rochfort. You have referred me to Black Adder and Ramsay Butchering Services, Saunders and Snell.

PN777

MR ROCHFORT: Yes. Your Honour, our argument for this is very simple. There is no reason why it can't be done as a matter of practice. This industry has some peculiarities, which I think we all recognise, and one of those peculiarities is the need to ensure confidentiality but it goes beyond that. There is frequently a need, even though a person may be on notice or that person may have given notice and be subject to that, for that person to be available because of the need for follow up action in relation to certain undertakings. The provision for garden leave covers such a person. It wouldn't apply to everybody but what it does is it enables a company to say to an individual, you've got a months notice but we want you to be available during that months notice. The very illustration that Mr Nucifora gave, of a person going off and joining another company during notice, is what that clause seeks to avoid and to do that, to go and get another job whilst under notice - not just to get another job but to go and actually work in another job would put that person in a very difficult position. You would be subject then to two contracts of employment because an employee is still subject to disciplinary procedures whilst under notice.

PN778

THE SENIOR DEPUTY PRESIDENT: Mr Rochfort, this is an item 51 review of the award. Which provisions of item 51 should I refer to so as to consider the importation into the award of the garden leave proposal?

PN779

MR ROCHFORT: Excuse me, your Honour, I will just refer to my friend. I've got it there somewhere but it's easier to get it off my friend. We're friends again - we always have been.

PN780

THE SENIOR DEPUTY PRESIDENT: You see, what is underpinning the question is I don't doubt that there might be an argument for the inclusion of such a provision in the award but I must say I tend to think it would be an argument that would be advanced through the avenue of a section 113 application to vary the award.

PN781

MR ROCHFORT: I appreciate that.

PN782

THE SENIOR DEPUTY PRESIDENT: I'm having some difficulty seeing which provision of item 51 would provide the wherewithal for the Commission to consider it at the present time.

PN783

MR ROCHFORT: I think that what was in the back of our mind, your Honour, was the fact that there are a number of principles of the Commission have slipped by during the ten years that this award has been nominated.

PN784

THE SENIOR DEPUTY PRESIDENT: Is garden leave one of those?

PN785

MR ROCHFORT: I beg your pardon?

PN786

THE SENIOR DEPUTY PRESIDENT: Is garden leave one of those?

PN787

MR ROCHFORT: No, your Honour, I have to say that honestly. I mean, if it goes in or it doesn't go in, it will continue to apply so what I'm saying is that it expresses - 51(3) is perhaps one, when varying the award, under sub item 2:

PN788

The Commission may also vary the award so that in relation to an allowable award matter -

PN789

and it is, notice:

PN790

...the award is expressed in a way that reasonably represents the entitlements of employees in respect of that matter as provided in the award is in force immediately before the end of the interim period.

PN791

Now, the fact of the matter is that an employee is entitled to notice. Now, all this does is it proscribes to the extent of the variation how that notice can be given. It can be given in the form of a notice and you will work the period and in normally circumstances it proscribes that, here you are, you have notice and we don't want you to work it out, we'll pay you in lieu, or it can prescribe for something in the middle of that where the employees is at liberty, not to sit round all day doing nothing, but to be available under certain circumstances to provide services to the company during the notice period. Now, there is nothing wrong with that in award terms. It just simply, in simplifying the award, states the obvious.

PN792

THE SENIOR DEPUTY PRESIDENT: So you are suggesting that I should vary the clause 14 to include 14.1.6 to simplify the award, notwithstanding that the clause 14 that I have adopted in the draft order is fundamentally based on the Commission's test case standard?

PN793

MR ROCHFORT: I'm suggesting that the Commission's test case does not rule out that clause.

PN794

THE SENIOR DEPUTY PRESIDENT: I see.

PN795

MR ROCHFORT: The Commission's test case envisages circumstances in which notice can be given. Notice should be properly given unless, of course, there's misconduct but otherwise notice should be properly given. This is just a statement in relation to the giving of notice which, in my submission, is appropriate for inclusion as an award provision.

PN796

THE SENIOR DEPUTY PRESIDENT: Thank you. Mr Nucifora, item 5 related to clause 16.1.1.

PN797

MR NUCIFORA: Yes, your Honour. We can see no problems with the - once a principle of the grade 3 metal trades rate equivalent - once that was determined and I don't think there is any - on my understanding, there is no opposition from any party that grade 3 is a metal trades rate equivalent. That was a primary position that we had. It was - what we wanted to raise is the question of calculation. I think there was a computer - that's normally done by computer, that is, working back the safety net adjustments. I have no calculations to disprove - to in any way suggest that those rates are not correct given that the adjustments have been made. I guess it's more of a clarification for down the track, if one day - and we're not sure what will happen here and we're waiting to see what the Full Bench says but it's this question of relativities and where the original relativities were.

PN798

Your Honour, I raise it as a question of clarification and at this point I've got no reason to not accept that the rates of pay that are there, particularly as we note we can see certainly the grade 3 is a metal trades rate equivalent and understand, of course, that all those higher rates, they are grade 3 as per the Metal Industry Award and other awards are - have been compressed because of flat increases - safety net increases. We understand that. I am not suggesting that the award should reflect the relativities. There was an agreed position between the parties on that earlier on. We are happy that that stands. I think that was reflected in - I think that's reflected in your decision and, in fact, that really is just a question of clarification, your Honour.

PN799

THE SENIOR DEPUTY PRESIDENT: So you don't want me to change anything in the draft award in this regard?

PN800

MR NUCIFORA: I don't believe so. Some awards do have the percentage relativity.

PN801

THE SENIOR DEPUTY PRESIDENT: Yes.

PN802

MR NUCIFORA: But I - my view is, so long as it's there on the record somewhere, then we can refer back to it if we ever revisit relativities again.

PN803

THE SENIOR DEPUTY PRESIDENT: Yes, it might be appropriate just for me to note, Mr Nucifora, that I don't generally include percentage relativities in simplified awards for the very simply reason that as soon as a national wage increase or a safety net adjustment is made, those relativities become inaccurate and, as a consequence, they give rise to more confusion than that which they actually do resolve.

PN804

MR NUCIFORA: Where I have seen it in awards, it does create that confusion with people who are not used to using awards and that's why I'm not promoting a view that it should go in there. It's more, if ever one day - and I'm not sure how we do this but if one day unions and employers revisit this whole question of relativities. I'm not sure how it's done because at the moment - - -

PN805

THE SENIOR DEPUTY PRESIDENT: You should be so lucky.

PN806

MR NUCIFORA: Well, I think that's what we're saying at the moment but in terms of the original calculations, there were safety net adjustments added to that - the original relativities - if that is there somewhere on the record then maybe some time in the next century - anyway, some time, someone can go back and say, well, they were the relativities that were reached back then rather than there being some rationale, if you like, on why we came to those rates of pay. I have got no calculations or any submissions that suggest that those figures are wrong, particularly as the metal trades rate is certainly correct at grade 3. I have no further submissions on that, your Honour.

PN807

THE SENIOR DEPUTY PRESIDENT: Thank you. Mr Rochfort, is there anything you wish to say to me additional on this issue of 16.1.1?

PN808

MR ROCHFORT: Nothing, your Honour. I think that it's appropriate the way it is. Recent wage case decisions have nominated a numerical increase. It's very easy to apply it to the way your Honour has done it. I doubt very much that we'll need to revisit the award in the way that Mr Nucifora has described. I believe it's appropriate the way it is and should remain as is.

PN809

THE SENIOR DEPUTY PRESIDENT: Mr Nucifora, item 6 which renders 16.2.1.

PN810

MR NUCIFORA: Yes, your Honour, as you know, this is a hotly contested provision. All I want to add to what we have already put in our submissions is that we have referred to, your Honour, the Clerks Brewery Decision and a reference in that decision to this award and this type of clause being - the 20 per cent being an exemption clause contemplated by that decision. Arising out of that decision, the exemption clause was removed from the Clarkes Breweries Award and between one of the parties that we have a close working relationship with and we have membership, we did reach agreement on an interim position in relation to an annualised salary - the payment - I've referred to it there as the 65 per cent.

PN811

Your Honour, our primary position is that those sorts of provisions should be in enterprise bargaining agreements and we rely there on the Tug Boat Industry Award and in the simplification of that award - if I may table a copy of an extract from the decision of Commissioner Wilks? That's in print R1723. I just table that, your Honour.

PN812

THE SENIOR DEPUTY PRESIDENT: I understand that but that Tug Boat Industry Award provides for a equal time on and equal time off swing shift system.

PN813

MR NUCIFORA: Yes, your Honour.

PN814

THE SENIOR DEPUTY PRESIDENT: Would you see that as being comparable with this award?

PN815

MR NUCIFORA: No, your Honour, there aren't a lot of - there aren't a lot of annualised - annualised pay clauses in awards apart from those where they were traditionally there. I understand there is some in the finance sector, the finance industry, that there's a long history of them. This here - there was an annualised - an aggregate salary in this award and in what I've tabled there, an extract from that decision in the - I have referred to it in our submissions in the paragraph 3:

PN816

The award currently prescribes a port factor and aggregate wage base on overtime which was applicable ...(reads)... and disadvantages others.

PN817

In the fourth paragraph and I quote:

PN818

Aggregate wages are presently contained in enterprise agreements at most, if not all, the ports covered by this award.

PN819

And then it goes on to deal with item 51(5) about that. We say that there hasn't been a history of annualised salaries as a provision in this award. There has been a history of an exemption clause and you went to that in your decision. I won't take you to the exact wording but went to in your decision that this award had an exemption clause and I think in cross-examination earlier Mr Rochfort asked Mr Bower about whether 35 per cent was better than 20 per cent. In effect, of course it is, but our point is, it's an exemption clause and as a result of the Clarkes Breweries Decision, it should be now removed.

PN820

Now, as a result of the Breweries Decision, there is no, we say, mandatory requirement that the removal of the exemption clause means that the parties have to consider annualised salaries and we reached agreement with one of the employer responses there in the Clarkes Breweries Award and that was CUB, Carlton United Breweries but I've got to say we didn't reach agreement or a consent addition with the other employers respondent to that award and, in effect, they now have an award - they no longer have an exemption provision. In that award it was $25 above the top rate. It's now been removed and no agreement has been reached.

PN821

In your decision you refer to, your Honour, if award simplification is about simplifying the award and removing allowable award matters, it is not about negotiating or reviewing other award items and we say that provision, given that we couldn't reach agreement on this, as we put in our primary submissions, the exemption clause should be removed, the 20 per cent, and given that we haven't reached agreement, there should be no clause relating to annualised salaries.

PN822

I think we give a hint - and I know Mr Rochfort has gone to this in light of the material that he sent through, that is, in terms of without prejudice discussions - and I guess we give a hint, at the bottom of that, that we had sought to try and see how we would go with testing it at the top of the structure and if it worked there, then we would try it - maybe we would consider it - this at grade 7 and 8. We wouldn't even be concerned with a particular percentage at that level, because at that level they are used to, more often than not, annualised salaries.

PN823

It is as a result of an abundance of caution that we do that in terms of the award. I have to say that I would have spent almost as much time as Mr Rochfort in dealing with this whole question of exemption as, of course, he has spent in trying to - to add flexibilities to this award. The exemption, once it went into our Clerical Award 30 years ago, it created problems. Now we have enterprise bargaining agreements which are reviewed or, if you like - I don't like to promote them on the record but if you're talking about AWAs and non-union agreements, they are reviewed over time. So there is an opportunity to say, well, that percentage isn't working, we've got to look at more or we've got to look at less because of the overtime that's worked.

PN824

We've heard already, in the witness evidence, that there are varying degrees of overtime. I know that Mr Rochfort has a rationale for the percentage he has reached. The fact of the matter is there was no agreement reached on that percentage and we would say that that clause should not go in but I indicated certainly in item 6 in our submissions that we were not being obstinate about that, we were willing to try and see if we could give that a go because there is a reality, as Mr Bower has indicated in terms of his witness evidence, that people are paid some amount of pay above the award and people are normally told that that's sufficient to cover them for all their overtime and when they're working on a Saturday and Sunday quite often that's the case. All they're paid at 20 per cent - this 20 per cent exemption rate. Now, simply increasing the percentage to whatever it might be - to 33_, doesn't deal with the central issues that you have raised in your decision about the reasoning in the Clarkes Breweries Decision.

PN825

Having said all that, just as we did with Carlton United Breweries, we have spent a long period of time trying to see whether we could reach any common ground there. Not having been able to do that, we think, as we have done with other items, we have gone back to the original award simplification principles, that is, we deal with what's in the award now, and exemption rate was considered in the Clarkes Breweries Full Bench matter as being not allowable, if you like, and a provision that undermines the safety net of the Work Place Relations Act, therefore it should come out.

PN826

I have no problems, and I've said this all along on a number of occasions, that those sort of issues should be dealt within agreements with employers,

PN827

THE SENIOR DEPUTY PRESIDENT: Yes.

PN828

MR NUCIFORA: As I say, your Honour, that would be - that's what we would seek to put in relation to - in relation to the proposition for an annualised salary clause.

PN829

THE SENIOR DEPUTY PRESIDENT: Thank you. Mr Rochfort?

PN830

MR ROCHFORT: Thank you, your Honour. Your Honour, we see the situation already determined in your Honour's draft attached to the decision that an annualised salary provision should go in. We have discussed that long and hard with the union including the provision 16.2.1 where your Honour has provided for an XX per cent and we put work into that. Ms Parrott has given evidence and provided her rationale anyway as to how she came up with that figure of 32_ per cent which we propose to be included in your Honour's draft as that percentage. We believe it's a proper provision.

PN831

I mean, in one sense you don't need it. In one sense it is something which can be dealt with at common law. It is always available to an employer to say to an employee, well, look, I'm going to pay you X dollars and if that becomes legitimate provided that X dollars is an amount which is at least equal to what the employee would otherwise receive were he, or she, to be paid his full entitlements.

PN832

Expressing it in the way your Honour has expressed it, and expressing it in the way in which I will be submitting to your Honour should be nothing more than fine tuning and that fine tuning, as I'm about to exhibit it - or seek to exhibit it - is an outcome of the discussions that we've had together - the discussions I've had with Mr Nucifora - and in particular to put safe guards in there, in particular to make sure that there is a review process and that review process will operate meaningfully and that is far better than just simply leaving it unsaid, as Mr Nucifora suggests should be the situation.

PN833

Your Honour, we have said what we have to say in our submissions. I don't propose to belabour those. I instead seek to exhibit a fine tuning, if you like - and with respect to your Honour of what your Honour has had to say, in a way which provides for the figure of 32_ per cent in lieu of your Honour's XX per cent. I believe that it is appropriate that it goes in. There is nothing in any of the decisions which says it shouldn't go in. Certainly various Benches have made decisions that such a clause is inappropriate in certain contexts or there should be a different rate in other contexts but your Honour has already implicitly asked the question, well, what does the Breweries have in common with this particular industry? What do the tug boats have in common with this particular industry? And the answer to that question is, very little. It's very little because this industry commonly works people at odd hours.

PN834

That can be demonstrated from exhibit IR3 that loads, whether they are big, small or indifferent, come in at odd hours and they have to be addressed, they have to be attended to, there has to be work done in relation to those loads by clerks and it is far simpler, it is in the interest of flexibilities for the industry that - for the employers in the industry - that there be a provision for payment of employees under those circumstances and it is appropriate for the employees that there be some nomination of what their entitlements are rather than they be left to the mercy of the scurrilous employers that Mr Bower was seeking to address.

PN835

The fact is, that that gives predictability and because it gives predictability, it gives simplicity. It makes things obvious to everybody and we believe the clause, as drafted by your Honour, should remain, albeit with the fine tuning that we proposed. Did your Honour give that a number, that exhibit?

PN836

THE SENIOR DEPUTY PRESIDENT: Yes, I'll call that IRA5.

PN837

MR ROCHFORT: IRA5 - exhibit IRA5.

PN838

THE SENIOR DEPUTY PRESIDENT: It is the employer draft clause 16.2

EXHIBIT #IRA5 EMPLOYER DRAFT 16.2

PN839

MR ROCHFORT: Thank you, your Honour.

PN840

THE SENIOR DEPUTY PRESIDENT: Now, Mr Rochfort, the issue of junior rates, number 7, on our list relating to clause 16.3?

PN841

MR ROCHFORT: Your Honour, once again - - -

PN842

THE SENIOR DEPUTY PRESIDENT: It might be best, just so we keep our order correct, if I ask Mr Nucifora to address me on this one first of all, thank you.

PN843

MR NUCIFORA: Your Honour, I don't want to add anything more to what is in 16.3. In fact, what Mr Rochfort was proposing was a better provision but, being consistent with what's in the existing award, rather than negotiating an outcome that we - we would say the current award provision should apply. My understanding is that the clause you have in the award is the current award provision.

PN844

THE SENIOR DEPUTY PRESIDENT: It was certainly intended to be. Yes, Mr Rochfort?

PN845

MR ROCHFORT: Thank you, your Honour. The employers recognise that juniors in this industry tend to take on, shall I say, responsibilities beyond their age. It is industry and if I could anecdotally just go back and say that Mr Bower and I were engaged in negotiations once for an enterprise agreement - certified agreement, as it was then - where an employee at age 19 was performing duties where she would be normally be classified as grade 6. Now, under the circumstances of the award as it stood at the time, she could have been paid 80 per cent of the lowest rate in the award, yet was performing work at a higher level of the award.

PN846

Now, the employers have sought to recognise that and in the interests of equity - and I can't imagine for the life of me why the union is opposing this - in the interests of equity the employers have proposed that junior rates be varied to recognise that sort of situation that I have just described to your Honour; the fact that juniors do have skills and abilities - in fact, the way Ms Parrott did that work that she has given evidence on before is because she has the ability to do that and I don't, it's as simple as that - and the industry recognises that those skills are there - - -

PN847

THE SENIOR DEPUTY PRESIDENT: Mr Rochfort, can I interrupt you for a second just to ask Mr Nucifora a question. It seems to me that the proposals being promulgated by Mr Rochfort, Mr Nucifora, are, in every instance, equal to or above those contained in the existing award and in my draft order.

PN848

MR NUCIFORA: Yes, yes, your Honour.

PN849

THE SENIOR DEPUTY PRESIDENT: And, on that basis, are you really opposing Mr Rochfort's proposal?

PN850

MR NUCIFORA: No, I'm not, your Honour, except - - -

PN851

THE SENIOR DEPUTY PRESIDENT: I was going to say, we'll go for the Guinness Book of Records if you are a union knocking back a wage increase.

PN852

MR NUCIFORA: Yes, I guess that's correct, your Honour. Unions don't like junior rates anyway, but we have to live with them.

PN853

THE SENIOR DEPUTY PRESIDENT: Do you want them lower or higher?

PN854

MR NUCIFORA: We'd love them higher.

PN855

THE SENIOR DEPUTY PRESIDENT: Well, Mr Rochfort's proposal seems to advance that course.

PN856

MR NUCIFORA: I understand that, your Honour. We would say we would be happy to accept that but if the argument goes that we can't have it both ways, that we can't seek to have what's in the award now in terms of hours of work and shift work, then they are more crucial - if there's got to be a consistent principle in terms of the existing award. Now, if it was part of an overall consent position - and this is this the problem a lot of that came apart - then - - -

PN857

THE SENIOR DEPUTY PRESIDENT: Well, Mr Rochfort hasn't presented it to me as such.

PN858

MR NUCIFORA: No, well, we are not opposed to it on its own but as a position, we don't believe that we will be worse off, in fact, employees will be better off.

PN859

THE SENIOR DEPUTY PRESIDENT: Thank you.

PN860

MR NUCIFORA: Thank you.

PN861

THE SENIOR DEPUTY PRESIDENT: Mr Rochfort, I think that addresses that particular issue.

PN862

MR ROCHFORT: I think so, your Honour. I would like to give your Honour a further exhibit which expresses what I am proposing.

PN863

THE SENIOR DEPUTY PRESIDENT: Yes, I am happy to receive that.

PN864

MR ROCHFORT: It makes it difficult when I can't even get agreement when I'm giving money away, your Honour.

PN865

THE SENIOR DEPUTY PRESIDENT: I will mark this as IRA6, noting it's a draft, the employer clause 16.3.

EXHIBIT #IRA6 DRAFT EMPLOYER CLAUSE 16..3

PN866

THE SENIOR DEPUTY PRESIDENT: Now, Mr Nucifora, the next item we have on our list is item number 8 which relates to the meal allowance.

PN867

MR NUCIFORA: Yes, your Honour, if I could take you to that clause? In 17.2.4 it refers to a new provision that goes to 24 hours notice. Now, that is not in the existing award. We say that the existing award provisions should apply. That's not something - and I mentioned in our submissions - that we had picked up on earlier, but it was there in the draft that was before you and it was something that - - -

PN868

THE SENIOR DEPUTY PRESIDENT: Yes, well, I think you'll find I worked from the draft - from the parties' draft - in the preparation of this clause.

PN869

MR NUCIFORA: Yes, I understand that.

PN870

THE SENIOR DEPUTY PRESIDENT: I agree that the existing provision, at clause 19 of the current award, is somewhat different to that.

PN871

MR NUCIFORA: Yes, we would only be putting that the current award provisions should apply. We have concerns that if all an employer had to do was give a 24 hour notice then maybe they'd never pay any meal allowance. It's not something we're used to in clerical awards. I've not seen that type of clause. I'm not saying it doesn't exist in other awards but I'm not aware of that provision in clerical awards and it certainly is not in the existing award, which is more to the point, your Honour, and we say that the existing award should apply.

PN872

THE SENIOR DEPUTY PRESIDENT: Thank you. Mr Rochfort?

PN873

MR ROCHFORT: Well, with the greatest respect it is in the existing award, although in an incomplete way. The existing award has a clause 19(b) which follows - perhaps it might be easier if your Honour turn that up. Now, it is quite - I'm sorry, does your Honour have - - -

PN874

THE SENIOR DEPUTY PRESIDENT: I do indeed.

PN875

MR ROCHFORT: Now, it's quite clear that that provision is the second half of some other provision. I mean, if - - -

PN876

THE SENIOR DEPUTY PRESIDENT: What provision?

PN877

MR ROCHFORT: The provision that we are now proposing. For example, B refers to:

PN878

If a clerical employee, pursuant to notice, has provided a meal or meals and is not required to work...(reads)...become superfluous.

PN879

Now, unless that is read with an additional clause, that is to say:

PN880

Provided the meal allowance shall be paid to an employee who was given notice.

PN881

that is obviously the notice referred to in B:

PN882

...of the requirement to work overtime an or prior to...(reads)... on the previous work day.

PN883

THE SENIOR DEPUTY PRESIDENT: But, as I understand what Mr Nucifora is asking me to do, is to vary clause 17 which may, in fact, require a variation to more than 17.2.4, so as to effectively pick up the entirety of the intent of the current clause 19.

PN884

MR ROCHFORT: Yes, but the clause 19 contains an incomplete clause. That is to say, 19(b) because without there being something in between 19(a) and 19(b), the word "pursuant to notice". Now, notice which is pursuant would be it has no meaning. There is no reference anywhere else to notice and that is because, your Honour, that clause has been left out - inadvertently, of course.

PN885

THE SENIOR DEPUTY PRESIDENT: So what are you saying I should do relative this particular provision?

PN886

MR ROCHFORT: What I'm saying your Honour should do is to make that complete - that current provision - put it into the new award and make it complete by adding the preamble to 19(b). That is to say, provided that the meal allowance shall not be payable to an employee who is given notice of the requirement to work overtime at or prior to the end of the employee's shift the previous work day. That should go in and that would then make sense of the current award provision 19(b). Without that, it doesn't make sense.

PN887

THE SENIOR DEPUTY PRESIDENT: Do you have a draft provision of the clause that you are looking for?

PN888

MR ROCHFORT: I do, your Honour, and I've had to add to that draft the word "not".

PN889

THE SENIOR DEPUTY PRESIDENT: I will call this IRA7, noting that it's the employer draft clause 17.2.4.

EXHIBIT #IRA7 EMPLOYER DRAFT OF CLAUSE 17.2.4

PN890

MR ROCHFORT: And then underlying, your Honour - and I'm not trying to do something else, something extra, I'm just trying to make sense of what was there before and contrary to what Mr Nucifora says about never having seen it before, if he had have given a proper reading to that clause, well, clearly that clause that I have now proposed is implied. Thank you, your Honour.

PN891

THE SENIOR DEPUTY PRESIDENT: Thank your.

PN892

MR NUCIFORA: I don't think that's the correct interpretation of that, sorry, your Honour.

PN893

THE SENIOR DEPUTY PRESIDENT: Yes, I'm taking it that there's no agreement on that particular issue.

PN894

MR NUCIFORA: No, your Honour, and I'm not sure what - if this came from some other award and there's some history to it then we would be happy to look at what Mr Rochfort is referring to but I'm not sure that - - -

PN895

THE SENIOR DEPUTY PRESIDENT: I shall have a look at the clause in the context of standard meal allowance provisions.

PN896

MR NUCIFORA: Yes, thank you, your Honour.

PN897

THE SENIOR DEPUTY PRESIDENT: Now, Mr Nucifora, items 9 and 10 appear to me to be capable of being dealt with together.

PN898

MR NUCIFORA: Yes, your Honour.

PN899

THE SENIOR DEPUTY PRESIDENT: Perhaps before you do address me on those though, it might be best if we just reassess our timing. Mr Rochfort, we have actually advanced quite a long way in a very short period of time. Is there any chance of you being able to stay on a little longer, given that we appear to be progressing, according to a time frame which hopefully would have us finished at around about quarter passed 4?

PN900

MR ROCHFORT: We are making remarkable progress, your Honour. I wonder if your Honour would do this: would your Honour be prepared to take a short break? I think even if we took that break it will still get Mr Nucifora on his plane and I can then make a phone call which I'd be grateful for obviously. I have a brother that's had a stroke, your Honour, and he is unable to - - -

PN901

THE SENIOR DEPUTY PRESIDENT: Yes, look, I understand your position and I'm simply trying to accord our both groups. If we adjourn for five minutes, would that be satisfactory?

PN902

MR NUCIFORA: Yes, your Honour.

PN903

MR ROCHFORT: Thank you, your Honour.

SHORT ADJOURNMENT [3.55pm]

RESUMED [4.05pm]

PN904

MR ROCHFORT: If you would excuse Ms Parrott for a couple of moments? She is following something up for me at the moment.

PN905

THE SENIOR DEPUTY PRESIDENT: Very well, Mr Rochfort. Now, what is the position in terms of time, Mr Rochfort?

PN906

MR ROCHFORT: I've spoken to the doctors now, that I needed to do, and I'm going to see them in the morning. If this matter finishes today I can give them time tomorrow morning.

PN907

THE SENIOR DEPUTY PRESIDENT: All right, very well, thank you. Now items 9 and 10, Mr Nucifora, we will deal with collectively, I think.

PN908

MR NUCIFORA: Yes, your Honour. Your Honour, there was witness evidence that went to these particular clauses today, particularly from Mr Bower. The ASUs position is, we say, appropriately summed up in our submissions in items 9, 10 and 11 as part of, of course, exhibit ASU1. But if I can take you to the award clauses in 24, now I think - - -

PN909

THE SENIOR DEPUTY PRESIDENT: Of the award or of the draft order?

PN910

MR NUCIFORA: I'm sorry, the draft order, sorry.

PN911

THE SENIOR DEPUTY PRESIDENT: Yes.

PN912

MR NUCIFORA: And the more we looked at this, I mentioned earlier, that the more we realised that, in reaching a balance in your draft, your Honour, in terms of submissions we have put to date, that I think trying to deal with issues that both myself and Mr Rochfort raised, that we are not seeking wholesale changes but we are seeking to address what may, at some later stage, be an anomaly in terms of hours of work. If I take you to, of course, 24.1.2, which we have raised. That talks about Monday to Friday. It remains unclear then about what happens on Saturday and Sunday but we don't - obviously that preserves the existing award provision in terms of ordinary hours. 24.1.3 - - -

PN913

THE SENIOR DEPUTY PRESIDENT: So, can I just clarify that? I take it then you are not - you don't have any change proposed relative to 24.1.2?

PN914

MR NUCIFORA: If it preserves the overtime arrangement on the Saturday and the Sunday, we don't. We just raise that as an issue and it gets back to my point about not seeking wholesale changes necessarily but seeking clarification. Of course, some of these things go to interpretation arguments that could go on forever. We don't want to do that. We want to keep the simplicity that you have put in your draft, your Honour.

PN915

In relation to 24.1.3, the concern we have there is, once again, if working in association with other employers, we didn't have a major concern. That is something that is picked up as a principle in the existing award and, of course, we mentioned earlier agreement in relation to spreading the 10 per cent loading outside of New South Wales to other states. We had no problem with extending that to all states. There is no reason why it should be - - -

PN916

THE SENIOR DEPUTY PRESIDENT: So, can I interrupt you?

PN917

MR NUCIFORA: Yes.

PN918

THE SENIOR DEPUTY PRESIDENT: I am a little lost. What specific change, if any, were you seeking to 24.1.3?

PN919

MR NUCIFORA: We are not seeking a specific change to that.

PN920

THE SENIOR DEPUTY PRESIDENT: Okay.

PN921

MR NUCIFORA: The only problem we see in that - and this is a clarification - is people working regularly to 8 o'clock at night and this 6 to 8pm issue comes up again in 24.1.4 because that's at odds with the current shift provisions - the afternoon shift - which should finish at 6 o'clock at 25.2.1 and we're concerned that the bundle of rights that go with being a shift worker could be eroded by the spread of hours that are actually sought in 24.1.3, particularly for 8pm. The early start is not a problem. We have agreed on that and we're talking about working with other employees to 5am. Our concern was with working 6 to 8pm at night and that - that as a regular roster arrangement could cut across the regular shift - afternoon shift - that we have in the existing award which finishes at 6pm and, of course, there was entitlements of 17 per cent shift loading there, not 10 per cent. 17, sorry. 17 per cent as opposed to the 10 per cent.

PN922

Now, it's the - it is a bit confusing when we talk about ordinary hours and shift work. We know that there are - and I don't think there's any dispute of course between myself and Mr Rochfort at least that there should be a separate bundle of rights for shift workers and we say those bundle of rights - and I'll come back to the other details in the shift work provision - but those bundle of rights should not have been eroded and the existing award shift work provisions should be preserved and I think, to a large extent, in your draft they are, your Honour.

PN923

The concern that comes up in 24.1.3 and 24.1.4, in particular 1.4, is this regular rostered arrangement where people can work till 8 o'clock at night and, in fact, only receive 10 per cent for all hours worked as opposed to 17 per cent in the shift work provisions. So there is that concern that we raise in relation to 24.1.4. I don't have a redrafted clause. Mr Rochfort does have a clause - there are some problems that I think - I know - and I'm happy to look at what Mr Rochfort is about to put up - but I have seen redrafted provisions but, to be honest, I have been more confused when I've looked at them. What you have put in your draft, I believe, goes to seeking to address the early start as we have in New South Wales - that was an agreed position by the parties - and then the 8pm at night and I'm not laying that as blame to yourself, your Honour, it was a position that was in a draft that was put to you but when we looked at it closely we realised that 6 to 8pm was going to overlap with the regular shift arrangement for afternoon shift.

PN924

Of course, 10 per cent, we didn't have a problem with the early start at 5 o'clock. That really just replicates the New South Wales provision and I guess we extend it - change it by half an hour - it's 4.30 in the existing award - and we apply it to all the states. We have no problem with that.

PN925

Now, when we go to 24.1.5, and talking about other arrangements, that's of course a facilitative provision. We wouldn't have a problem with that type of clause and this is after careful analysis. At first when we saw that we had concerns about this opening up as a result of an individual facilitative clause - opening up the whole arrangement of working hours - but if that clause had a checks and balance provision, as per 24.5, that's finishing times - and if I can refer the clause that you put in your order, your Honour, in 24.5, that refers to:

PN926

The employer and employee may reach agreement on a work roster which provides for the employee's ...(reads)... a period of six years.

PN927

Now, if that type of provision - I haven't redrafted here, your Honour - but if that type of provision went into 24.1.5, we would have no problem with that. Even though that's drafted differently from what's in the current award, it gets back to what I was saying earlier that we weren't seeking to make wholesale changes to the draft order that you've put rather to ensure as I guess the union's theme has been all along has been not just the exiting award provision but to ensure, if there are going to be facilitative clauses, that there are sufficient checks and balances and a sufficient safety net as you have drafted in - as you have put in 24.5 in terms of finishing times. We have no problem with that clause and we would, apart from what we have put in our submissions, be happy to see that sort of - the checks and balances you have put there in terms of overtime and shift work entitlement, go into 24.1.4. We could live with that.

PN928

Your Honour, in relation to the concerns - I guess to just summarise - they come up in our written submissions and I don't want to restate them. I could take you to the 19 consecutive days but that's going onto another item and I'm happy to wait till - - -

PN929

THE SENIOR DEPUTY PRESIDENT: Yes, let's come to that one in a moment.

PN930

MR NUCIFORA: Yes, your Honour.

PN931

THE SENIOR DEPUTY PRESIDENT: Let's not be overly ambitious.

PN932

MR NUCIFORA: Yes, your Honour.

PN933

THE SENIOR DEPUTY PRESIDENT: Mr Rochfort?

PN934

MR ROCHFORT: Your Honour, we've made lengthy submissions in relation to this particular clause relating to hours of work and one thing that Mr Nucifora hasn't mentioned which, of course, has become a very important test case of the Commission recently, is the working hours case and in framing our proposals, we have had regard to a number of factors including the issue of the hours that employees are required to work. Now, very simply, this industry responds to international scheduling, not only of flights but of ships, and they can be anything but what might otherwise be deemed as standard.

PN935

Employees in this industry do work, as in the ordinary course of their employment - no one is suggesting that it is ordinarily paid but as part of the ordinary course of their employment in all sorts of areas. I can take your Honour, if your Honour was so disposed, on a tour of establishments where there are customs brokers and freight forwarders, and we go there in the dead of night and the lights would be on and there would be people working doing clearances, not only because of the requirements of the business but because of the imperatives that have now been imposed by the Australian Customs Service and the Australian Quarantine Service. There are very strict limits and they have been brought about largely because it's now possible to do electronic clearances. You don't have to actually go out yourself in the dead of night and do these things, but they can be done electronically but they must be timelessly.

PN936

Everything that we have done - and it sets out a series of examples and it looks at examination. Your Honour, ironically enough, raised this question earlier in these proceedings; that an employee who currently is required, as part of the ordinary requirements of the business, to work Saturday and Sunday, does so now on the basis he works overtime. Now, no sensible employer is going to pay him for working ordinary hours - I beg your pardon, not working ordinary hours of a week but being entitled to be paid his ordinary pay. That employee literally works overtime and that can mean six or seven days a week work, often in the dead of night.

PN937

I am not going to repeat what I said in the submissions, your Honour, except to say this: that there are good and cogent reasons for the ordinary hours of work, required of employees in this industry, to be recognised as something which are unique, especially in comparison to, for example, the breweries or, for example, to tug boat operations. Tug boat operations, to my knowledge - and I do the work for one of those particular companies - don't take place in the dead of night. And, in fact, if a ship comes and arrives in the dead of night, it's moored off shore, off Sydney Heads or off Botany Bay Heads until the light of day and then the tub boat can come out and bring it home but this industry is different. It is convenient for planes to land - there are certain limitations in Sydney which don't make the requirements quite so extensive or low, but I say this, that a flight that lands, within the limits of the curfew at 11 o'clock, can still have clearances - customs clearances and so forth - done in relation to that flight up till 3 o'clock in the morning and still be within the time frame imposed by Australian Customs. Or a flight which is due to arrive at 5 o'clock in the morning, someone can be starting work on doing the export clearances for that flight at 1 o'clock. So, in the true sense of the word, there is a requirement for employees to work in the ordinary course of events at these hours.

PN938

Now, in the proposal that we have made, we have described those hours as ordinary hours so that the time that falls on a Saturday or Sunday, for arguments sake, or the time which happens to fall up to 10 o'clock, can be described as ordinary hours, part of the ordinary construction, so they are not worked as additional hours to the normal hours and the penalty rates are paid. For example, if an employee works his ordinary hours on Saturday, well, that employee gets paid at the rate of - at the rate of time and a half.

PN939

I should say this, your Honour, that there is an award covering transport workers, engaged in this particular industry, which is industry specific. It is known as the Transport Workers Air Freight Forwarders and Customs Clearance Award. Mr Nucifora has already referred your Honour to it, and it has a span of hours from 5am to 8pm. Now, far be it from me to say that the transport workers are obviously more progressive, in relation to recognising what is ordinary in this industry, that the ASU. I would never dream of saying that to your Honour but one can be left to draw their own conclusions and the fact of the matter is that these transport workers are the people with whom clerical employees in the industry work cheek by jowl. If anything, a clerk is required to prepare documentation for the work of a transport worker so it is ready for the transport worker when he starts work at 5am or to complete the documentation for the transport worker who arrives back, in the ordinary course of his work, at 8pm. And it is irrational to think that there should be award constraints on those people.

PN940

The proposition that we have put up, your Honour, recognises the need to preserve benefits and entitlements as the Transport Workers Award has done. It has provided, for example, for time and a half to be paid for all hours worked on Saturday, double time for all hours worked on Sunday. What we are asking is nothing more than something - a provision which is consistent with that.

PN941

Now, so far as Saturday and Sunday work goes, there was some discussion between myself and Mr Bower over the luncheon break in which the proposition was put that that Saturday and Sunday work could go into the shift work provision. It is tacitly provided in there - in clause 25 in your Honour's draft. It is tacitly provided in there when it says that:

PN942

The ordinary hours of employees on shift work shall not exceed an average ...(reads)... on any of the days of the week.

PN943

What that doesn't do, your Honour - and I recognise this and Mr Nucifora is aware that I have recognised that that may well have been an oversight - is to suggest to Mr Nucifora and the union that when those hours are worked on Saturday and or Sunday that they attract the appropriate penalty and that's an omission and I have addressed that - well, I thought I had, your Honour. I am remiss in that the documents that I prepared, unfortunately, don't include one for shift work but what I proposed to Mr Nucifora, and it's clear in my letter to him - your Honour has that there in the letter of 7 March - is that we include, as part of the ordinary work for shift workers, hours worked on a Saturday and a Sunday so they are not deemed to be overtime but they are then paid at the penalty rate. That is to say, we include mirror provisions and I'm happy to go back to my office and provide your Honour with a draft clause for clause 25.

PN944

What I propose to do at the - - -

PN945

THE SENIOR DEPUTY PRESIDENT: Mr Rochfort, you are referring me to IRA1.

PN946

MR ROCHFORT: Yes.

PN947

THE SENIOR DEPUTY PRESIDENT: I'm wondering whether you can direct me to a specific part of that document?

PN948

MR ROCHFORT: Yes, the comments that I'm making in relation to clause 24 generally is in the section headed 9/10.

PN949

THE SENIOR DEPUTY PRESIDENT: Yes, I can see that but you are referring me to a particular set of words. It's that set of words that I'm looking to locate.

PN950

MR ROCHFORT: Yes, I beg your pardon. I have that in the form of an exhibit, your Honour.

PN951

THE SENIOR DEPUTY PRESIDENT: I see, thank you. Do you want to hand me that exhibit now?

PN952

MR ROCHFORT: Yes, please. What I've done, if I might just explain this, I've redefined the ordinary hours, so as there won't be any confusion, and called them standard ordinary hours. Now, I used that expression because I responding to Mr Nucifora's concern that there is already a perception of ordinary hours. Mr Nucifora, quite quaintly, thinks that that's 9 to 5 but what I've done is I've looked a provision for standard ordinary hours because what you've got to remember, your Honour, as I ask you with respect, is that the industry covers a lot of operations that don't necessarily work outside that span of hours because they are nothing more than customs brokers and provide services to clients who are working a conventional day, if I can use that expression.

PN953

THE SENIOR DEPUTY PRESIDENT: I shall call this document IRA8.

PN954

MR ROCHFORT: Thank you, your Honour.

PN955

THE SENIOR DEPUTY PRESIDENT: It is the employer draft clause 24.1.2.

EXHIBIT #IRA8 EMPLOYER DRAFT CLAUSE 24.1.2

PN956

MR ROCHFORT: Now, if your Honour looks at clause 11 - and this has to, of course, be read in context with - - -

PN957

THE SENIOR DEPUTY PRESIDENT: Clause 11?

PN958

MR ROCHFORT: Yes, that identified as clause 11.

PN959

THE SENIOR DEPUTY PRESIDENT: You mean item 11?

PN960

MR ROCHFORT: Item 11, yes, I beg your pardon. I've suggested there what changes there should be for the shift work clause. I have suggested perhaps that if we look at this concept of standard ordinary hours, the afternoon shift should, by definition, mean a shift finishing after 6pm, not 8pm as in your Honour's draft, because that would be the standard provision in the award for a standard type ordinary hours and early morning shift - the shift which commences between midnight and 6am. I have suggested that. I have proposed to Mr Nucifora that there be a provision in that shift work clause to cover ordinary hours when they are performed on a Saturday during a day shift. A day shift attracts no shift loading as such but there still should, nevertheless, be an hour and a half - I beg your pardon, time and a half claimed on Saturday. It is not there at the moment, your Honour, and I have invited Mr Nucifora to accept that the employers don't propose to take anything away from the employees and I have also drawn to Mr Nucifora's attention, as I now draw to your Honour's attention, that there is another misprint in 25.9.2 about the meal allowance for the shift worker should be no less than that for a day worker, and that's 8.87.

PN961

THE SENIOR DEPUTY PRESIDENT: I have not got to clause 25 yet.

PN962

MR ROCHFORT: I'm sorry, your Honour, I'm trying to do it all in one hit. Perhaps I'm running a bit ahead of things.

PN963

THE SENIOR DEPUTY PRESIDENT: We are dealing fundamentally with items 9, 10 and 11.

PN964

MR ROCHFORT: Yes, shift work is 11.

PN965

THE SENIOR DEPUTY PRESIDENT: Yes.

PN966

MR ROCHFORT: But in addition to what I have submitted in writing to your Honour and the justification to that, and particularly Ms Parrott's evidence, what I'm saying is it is entirely appropriate in the context of this award and the simplification of this award, to make those changes. Nothing that Mr Nucifora has said - in fact, I get the impression that he even half agrees with me on a lot of the proposals. Certainly there seems to be some sort of agreement that provided nothing is taken away, for working on Saturdays and Sundays, there is merit in the proposition that they be deemed to be ordinary hours of work but paid, as I say, at a penalty rate because of the particular nature of them but so as to create a situation, consistent with the working hours decision, whereby people aren't working perhaps six days or even seven days a week in order to cover the work which is ordinarily required on a Saturday or a Sunday and nothing in what we have proposed, your Honour - as I say, with the exception that I need to prepare a draft clause 25 - nothing that I have said is inconsistent with a proper approach to this nor one which is fundamentally inconsistent with what Mr Nucifora has to say.

PN967

My only concession would be, if your Honour is more comfortable with this, is to include Saturday and Sunday work as a provision of shift work and so that a person is so described, if they work Saturday and Sunday. But frankly, in the way the award is drafted at the moment, I don't think it means much at all and it is better, for an understanding of the award and a simple reading of the award, for that provision to be there so that it applies for ordinary day workers, in the context of hours or work, and shift workers in the context of shift work.

PN968

Your Honour, I don't think there's much more that I need to say that I say in addition to what I have already put to your Honour in writing and, indeed, which your Honour has already determined in the draft award that your Honour has prepared. My proposals are simply fine tuning of that, your Honour, and with respect to your Honour's drafting attempt to address where something may have been omitted, for example, you can read into the shift work provision working on a Saturday or a Sunday but if that can be read in, why not make it clear and simple that that is there and then a proper penalty rate is provided for those ordinary hours. As I say, we seek to adopt your Honour's draft with the provision of suggestions to overcome what we see to be deficiencies.

PN969

Your Honour, one thing I would like to raise in connection with what Mr Nucifora had to say to you regarding clause 24.1.4, it was always the proposition of the employers that that arrangement be one which was irregular. When I used the word "rostered" I was really referring to every Wednesday or every Saturday and, of course, that is not a shift work - that is not a shift provision. A shift provision is one which goes, I think in this award, over two weeks, a two week period and regularly with an early start.

PN970

Your Honour, what happens in this industry - and Mr Bower touched on this in other evidence and I won't address it directly - but you do get flights which arrive, for example, on a Friday. It's not necessarily a flight from within the company but it might be a Continental Airlines flight and that particular flight arrives every Saturday morning - every Friday morning, say, at 5 o'clock so that someone has to be on hand to perform that work, that clearance, those import clearances or export clearances as the case may be. What happens is these freight planes turn around pretty quickly. All Continental flights that arrive in Australia do not carry passengers. Often they are just devoted to the carriage of freight, as are other airlines, and they are dedicated in that way.

PN971

The clause that I have given you, the variation, addresses that question in the proposed - I'm talking about IRA8 - the proposed new clause 24.1.6:

PN972

Employees may be required to commence ordinary hours of work on an irregular basis to meet specific requirements of a business.

PN973

And that is the sort of situation I'm talking about and I'm addressing - - -

PN974

THE SENIOR DEPUTY PRESIDENT: Are you adverse, Mr Rochfort, to a definition for the purposes of that particular clause of the concept of regular and irregular?

PN975

MR ROCHFORT: Well, it's one way. I - I have included a provision in there that that clause not be used, clause 24.1.9 - that it shall not be intended - it's not intended to replace shift work provisions and shift work, of course, has a particular definition; is this work occurring on every day of the week, well clearly, it would fall within the definition of shift work and to do it other than with application to the appropriate shift work clause, would be quite inappropriate and it's not intended to do that. Yes, a definition could be put in for absolute prudence but I think the context, your Honour, speaks for itself. It is not a Claytons shift work clause, nor is it intended to be, but it's intended to be when work is irregular. It is very difficult, your Honour, to say, well, okay, we'll only do that two times a week or three times a week perhaps but sometimes, for whatever reason there may be, exigencies arise outside that pattern. And they might not happen at all. All of a sudden Continental may, for one reason or another - and these things, of course, are affected by such things like weather circumstances in other countries or industrial circumstances in other countries or mechanical problems. I can remember sitting round at the airport one day for a company, which shall remain nameless, waiting for a flight to arrive from Honolulu and we waited eight hours for that flight to arrive after its nominated time. And those changes and those exigencies arise very often in the majority of case because of circumstances from overseas. So the industry, unlike for example, breweries, has peculiarities and exigencies that arise in circumstances utterly beyond its control, including overseas acts of the Almighty.

PN976

So that what we have done is we've tried to, in the proposal that your Honour has, IRA8, to fine tune what your Honour has had to say and largely reflecting the outcome of the discussions that I've had with Mr Nucifora because Mr Nucifora has raised a valid point; the employers have addressed them. We don't always agree on things but we do recognise that Mr Nucifora may be right occasionally and then we try to include that in the proposals because we are not trying to - forget the words Mr Nucifora used - but we are not trying to get at him or anyone else. Thank you, your Honour.

PN977

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Rochfort. Mr Nucifora, in light of Mr Rochfort's comments to me on items 9, 10 and 11, I would like to clarify your position, if I can.

PN978

MR NUCIFORA: Yes, your Honour.

PN979

THE SENIOR DEPUTY PRESIDENT: I clearly understand that the union has a concern relative to the 10 versus 17 per cent shift issue.

PN980

MR NUCIFORA: Yes, your Honour.

PN981

THE SENIOR DEPUTY PRESIDENT: But I had understood, from your written submissions, that the union had, if you like, a fundamental objection to incorporating Saturday and or Sunday work in ordinary hours.

PN982

MR NUCIFORA: Yes, your Honour.

PN983

THE SENIOR DEPUTY PRESIDENT: Now, does that position remain firm if the work undertaken on the Saturday and the Sunday is paid for as if it were overtime work?

PN984

MR NUCIFORA: Yes and no. If there - what we would go to is the existing award provision. If you work on a Saturday and a Sunday and you are otherwise working ordinary hours, then you get paid time and a half for the first two hours and double time thereafter on a Saturday and then double time on Sunday.

PN985

THE SENIOR DEPUTY PRESIDENT: Yes.

PN986

MR NUCIFORA: And for that matter, double time and half on a public holiday.

PN987

THE SENIOR DEPUTY PRESIDENT: Yes.

PN988

MR NUCIFORA: If you are working Saturday and Sunday and we're talking about what might be a shift arrangement, then that should be seen on its own under the shift clause and we have a particular view about that. Our concern is that if people worked on a Saturday and Sunday and that's considered ordinary hours and they are paid ordinary rates of pay - - -

PN989

THE SENIOR DEPUTY PRESIDENT: No, I'm not suggesting that. I'm trying to tease out, if you like, the union's position were the provisions of the clause to require that the work undertaken in ordinary hours on Saturday and Sunday be paid for at overtime rates.

PN990

MR NUCIFORA: Yes.

PN991

THE SENIOR DEPUTY PRESIDENT: Notwithstanding that it would be part of the ordinary hours. It seems to me that that creates a potential dilemma. On the one hand, an employee at the moment who might be regularly required to work on a Saturday and Sunday, might well find themselves working seven days of the week.

PN992

MR NUCIFORA: Yes.

PN993

THE SENIOR DEPUTY PRESIDENT: And hence receive their normal weeks pay plus the overtime work for the Saturday and Sunday. If the Saturday and Sunday were to be treated as part of the 38 ordinary hours, but paid for at overtime rates, then it probably doesn't take a Rhodes Scholar to work out that the employee would then, quite potentially, be in receipt of some 16 hours, or thereabouts, less pay per week because there would be another - or another two - alternative days that would presumably be granted to the employee as the sixth and seventh day.

PN994

So, on the one hand, they lose money on that basis, but on the other hand, they do pick up two days off that they wouldn't necessarily otherwise have and it's that issue specifically that I'm inviting you to comment on.

PN995

MR NUCIFORA: Your Honour, the more we go into the hours of work in the existing award and changing that, the mor we are moving away from the item 51 process.

PN996

THE SENIOR DEPUTY PRESIDENT: Yes, I appreciate that.

PN997

MR NUCIFORA: My concern is trying to get back - - -

PN998

THE SENIOR DEPUTY PRESIDENT: I'm not indicating that I have reached a conclusion.

PN999

MR NUCIFORA: No, no, I understand that.

PN1000

THE SENIOR DEPUTY PRESIDENT: I'm just trying to clarify your position on this issue.

PN1001

MR NUCIFORA: I think it gets to the heart of why we thought we might have been able to reach agreement on ordinary hours but, in effect, we were worried about this starting to look like continuous shift work, and that is, working seven days a week and of course we have that in the airline industry where they do work round the clock and they do get the afternoon and weekend shift loading and they do get an extra weeks annual leave. That starts to sound like an application that should be a section 113 application in relation to this award. It is an item 51 process.

PN1002

In terms - to the extent that the award provisions have been redrafted in your order and we tried to deal with in the - within those changes - the reason being is, I think, that it is simply put in your draft. The more I look at, for example, IRA8, the more I worry about ordinary hours being used - not because Mr Rochfort is - that's his intention but actually being used as a defacto - - -

PN1003

THE SENIOR DEPUTY PRESIDENT: Yes, I understand your position in that regard, but at the same time I would be interested in a response to my question.

PN1004

MR NUCIFORA: About Saturday and Sunday work?

PN1005

THE SENIOR DEPUTY PRESIDENT: Yes.

PN1006

MR NUCIFORA: Well, we would say that the effect of any clause now should be the same as the existing award. They should get paid their penalty rates on a Saturday and Sunday. We don't - we acknowledge in terms of the witness evidence that's been put both by Mr Bower and Ms Parrott, that hours have, because of technology and, of course, because of the industry needing more flexibility, we have tried to deal with that but the dilemma we face is, at the same time getting to this point where we could be undermining the whole ordinary hours question.

PN1007

If we get back to what you put, you say Monday to Friday ordinary hours. It implies that Saturdays and Sundays, of course, are overtime, they're outside that spread and we like to get back to that in terms of the existing award.

PN1008

THE SENIOR DEPUTY PRESIDENT: Look, I understand that. You have said that on a number of occasions.

PN1009

MR NUCIFORA: Yes.

PN1010

THE SENIOR DEPUTY PRESIDENT: My specific question is based upon item 51(6). Item 51(6) requires that:

PN1011

The Commission must, if it considers it appropriate, review the award to determine whether or not...(reads)...fairness to employees.

PN1012

Now, the question that I'm asking could be put in another way. What do you say is fairer to employees? Is it that they receive payment for seven day period with the Saturday and Sunday at overtime rates, the Monday to Friday at ordinary time, or is it that they receive payment for five days work with two of those days being weekend days paid for at overtime rates but two days not being paid for but being counted as time off? I'm just trying to ascertain your view on the question of fairness to employees in that respect.

PN1013

I would have concern about anything that changes the definition of Saturday and Sunday as being outside the ordinary hours in the current award and I wasn't going to go the reasonable hours test case - there is a provision in here.

PN1014

THE SENIOR DEPUTY PRESIDENT: Yes.

PN1015

MR NUCIFORA: While we have tried to put in facilitative provisions and I think you've tried to put - and I think you have sought to put that in your draft - a balanced provision that people areN't going to lose entitlements, I have a concern that if Saturday and Sunday become no different to Monday and Tuesday in this award then it not only becomes a problem here but it becomes a problem in other awards. I think that was it. We understand that this industry, like the air line industry - it's no different from the airline industry - deals increasingly so with a seven day week 24 hour - 24 hour day seven week arrangement but there they have continuous shifts, seven days a week and they have shift loadings actually better than the ones that are in this award and they have an extra weeks annual leave. Now, if we get into that - the merits of that - then we are really dealing with a 113 application to vary this award and I - - -

PN1016

THE SENIOR DEPUTY PRESIDENT: I understand your argument.

PN1017

MR NUCIFORA: And I think that's where it - - -

PN1018

THE SENIOR DEPUTY PRESIDENT: I understand your argument but you have declined to answer my question.

PN1019

MR NUCIFORA: Well, I think - I think it's unfair - - -

PN1020

THE SENIOR DEPUTY PRESIDENT: But I accept that. That's your prerogative.

PN1021

MR NUCIFORA: I think - I think, your Honour, it goes to the question of what is fairness and I think, in fairness, Saturday and Sunday in this award should be no different from Saturday and Sunday as it is in the Clerks Road Transport Award and that award has been simplified with no changes to hours.

PN1022

THE SENIOR DEPUTY PRESIDENT: Thank you.

PN1023

MR NUCIFORA: And I think that - sorry, your Honour. I think I understand what you're saying. In terms of that question of employees being better off in terms of pay, I wonder if in 24.1.5 in the draft order, whether that doesn't allow for that arrangement but, once again, my earlier point was, as per 24.5, there isn't that - would ensure in the drafting you've got in 24.5 it goes to:

PN1024

Any such agreement must provide for payments to the employee which in total reflect minimum ...(reads)... or shift work.

PN1025

So, what you are putting as a question may have been picked up by 24.1.5 as an individual arrangement if it wasn't regular shift work.

PN1026

THE SENIOR DEPUTY PRESIDENT: Thank you. Now, moving on, item 12.

PN1027

MR ROCHFORT: Could I raise one matter, your Honour, before we move on there?

PN1028

THE SENIOR DEPUTY PRESIDENT: Yes, Mr Rochfort?

PN1029

MR ROCHFORT: It comes from your question that asked Mr Nucifora. The one thing that it didn't occur to me to say, but it did occur to me when you asked your question, and that is that in a construction, say, where Saturday and Sunday become two of the ordinary days of work, an employee - let's, for argument sake say an employee is required to work Wednesday, Thursday, Friday, Saturday and Sunday and there he is, that's his ordinary week of 38 hours. Now, what would happen then if that employee then was going to work six days a week, say he was asked to come in and work on the Monday and, of course, the Monday would be a strictly overtime day so that in that event, that employee working overtime for six days would be considerably better off than the employee working the Monday to Friday and then the overtime on Saturday and or Sunday because he's going to be paid that Monday at overtime rates.

PN1030

THE SENIOR DEPUTY PRESIDENT: Yes, I understand what you are saying.

PN1031

MR ROCHFORT: So he is going to get a great benefit. I also should say, in that context, that the Transport Workers Air Freight Forwarding and Customs Clearing Industry Award does provide for Saturday and Sunday work and it does provide for time and a half on the Saturday and double time for the Sunday. Thank you, your Honour.

PN1032

THE SENIOR DEPUTY PRESIDENT: Mr Nucifora?

PN1033

MR NUCIFORA: Your Honour, I just want to reiterate, I think 24.1.5 - - -

PN1034

THE SENIOR DEPUTY PRESIDENT: We might never get off this issue.

PN1035

MR NUCIFORA: Yes - provides that and with the safe guards in 24.5, then we may not have a problem with it. Your Honour, in terms of the next question, the 19 day month, my understanding that has been agreed to and that was an oversight. It's a drafting question where we say in 24.1.5.1:

PN1036

No employee is to work more than 19 working days consecutively rather than 19 days consecutively.

PN1037

And I think there is consent from Mr Rochfort in relation to that.

PN1038

THE SENIOR DEPUTY PRESIDENT: So the proposal is to change - - -

PN1039

MR NUCIFORA: 24.1.5.5.1.

PN1040

THE SENIOR DEPUTY PRESIDENT: To read:

PN1041

MR NUCIFORA: That:

PN1042

No employee is to work more than 19 working days consecutively.

PN1043

THE SENIOR DEPUTY PRESIDENT: 19 working days. Thank you.

PN1044

MR NUCIFORA: And we - and that is the traditional 19 day month rostered day off arrangement. I can allow Mr Rochfort to talk about that now.

PN1045

THE SENIOR DEPUTY PRESIDENT: Yes.

PN1046

MR ROCHFORT: I don't have anything further to say. I agree with Mr Nucifora that it does mean 19 days - working days - and nothing further to say, your Honour.

PN1047

THE SENIOR DEPUTY PRESIDENT: Thank you.

PN1048

MR NUCIFORA: Your Honour, we would say no further change to the - otherwise to the 19 day month draft in your draft order. There is a question then of the next question of casual employees in 24.6. Now, the intention of this has always been the same. It's a drafting issue. The way it reads now:

PN1049

A casual employee working on a Saturday or Sunday or public holiday shall be paid in addition to ...(reads)... of 10 per cent.

PN1050

Now, if taken literally, that would mean for any casuals working on a Saturday or Sunday or public holiday would be paid, I think it's 43 per cent flat - a flat percentage. That's not the intent that Mr Rochfort - and it really is a drafting question and I'm not certain that - well, I certainly believe that the way it's drafted there could be misinterpreted and it should read - normally with a casual employee if they work on a Saturday or Sunday or public holiday you can't get a loading on a loading, they in fact get overtime at the ordinary rate and that's what we say - - -

PN1051

THE SENIOR DEPUTY PRESIDENT: So can you read out to me what you propose that clause should say?

PN1052

MR NUCIFORA: Well, I wonder if that clause should be there because if it reads - if it reads the way it is now, then a casual employee could be employed at 43 per cent of that flat rate for Saturday, Sunday and public holiday. I know that's not what Mr Rochfort means but that's how it can be interpreted. It just says 10 per cent loading on top of the normal casual loading whereas it should read - and I don't believe it needs to be in the award.

PN1053

THE SENIOR DEPUTY PRESIDENT: I'm just asking what should that clause read?

PN1054

MR NUCIFORA: Well, I don't think it needs to be there.

PN1055

THE SENIOR DEPUTY PRESIDENT: Right, so you are saying delete the clause?

PN1056

MR NUCIFORA: Yes, that's right, your Honour. It is not in the existing award.

PN1057

MR ROCHFORT: I will agree with that if that's the way the Commission wants to approach it. It's the easiest way.

PN1058

THE SENIOR DEPUTY PRESIDENT: Now, item 14 has, to some extent, been already dealt with but I'm happy to here anything further on it.

PN1059

MR NUCIFORA: The only thing I'd add to that, your Honour, is in relation to afternoon shift. I think Mr Rochfort was talking about in 25.2.1 agreeing that that should read instead of 8pm, 6pm as per the current award and the other thing we would add in relation to this clause, and we have put it in our written submission, goes to recognising shifts in 25.3 in the existing award talk about eight hours and Monday to Friday.

PN1060

Now, if go, once again, to include Saturday and Sunday as part of a seven day shift - continuous shift roster - once, again, if you look at the airline industry the shift loadings are actually better than what is in this award and they get an extra weeks annual leave. That would be the fairest way. If you're really talking about, at the end of the day, having a seven day continuous shift roster arrangement, I don't think that's - from what the evidence we have heard today, witness evidence from Mr Bower and Ms Parrott is what is actually needed in this industry as compared to say the airline industry. That's not to say that work isn't required on a Saturday and Sunday but we're saying that the existing shift work provisions should prevail and a 113 application would be required to change that to something other than - other than the Monday to Friday and going to a seven day continuous shift roster and that would include having the additional - at least the additional weeks annual leave and possibly revisiting the loading themselves.

PN1061

If we use the Airline Industry Clerical Award as any guide - and there may be a nexus that exists between the International Freight Forwarding Industry and the Airline Industry. We have not suggested over the terms of the item 55 process here as, once again, that it is really a 113 application changing the existing shift clause provision.

PN1062

THE SENIOR DEPUTY PRESIDENT: Mr Rochfort?

PN1063

MR ROCHFORT: Thank you, your Honour. A variation to what your Honour has drafted in relation to afternoon shift hours and early morning shift hours would, of course, be contingent upon your Honour accepting my concept of standard ordinary hours being from 6 to 6. That was varied in order to accommodate that suggestion. I think anything else has been dealt with and doesn't need to be repeated me. I think shift work has been covered adequately in terms of both points of view. The only thing I would say, your Honour, in relation to Mr Nucifora's comments, there is no nexus at all between this industry and the airline industry. There is no curfew, for example, that applies in this industry as it applies in the airline industry in Sydney. This industry operates completely independently and it's for that reason that attempts to rope respondents to this particular award into the airlines award have previously been unsuccessful. I reject that completely. Otherwise, I have nothing further to say, your Honour.

PN1064

THE SENIOR DEPUTY PRESIDENT: But you agree to the change from 8pm to 6pm in 25.2.1?

PN1065

MR ROCHFORT: Yes, subject to, of course, to your Honour accepting my proposal of the hours of work being 6 to 6. That's the standard hours of work. I think what I'll be doing, your Honour - - -

PN1066

THE SENIOR DEPUTY PRESIDENT: I see, so what you are saying there is I should read 25.2.1 as afternoon shifts means any shift finishing after 6pm and at or before midnight.

PN1067

MR ROCHFORT: Yes.

PN1068

THE SENIOR DEPUTY PRESIDENT: And then I should read early morning shift as meaning any shift which commences between midnight and 6am?

PN1069

MR ROCHFORT: Yes, your Honour, unless of course - then that would have to be an exception, of course - and I did offer, your Honour, to draft a clause - there would have to be an exception for it unless the shift falls into one of those categories - unless it has, for example, been agreed there's one that starts at 5am - but I'll draft that, your Honour, if your Honour will permit and give that to your Honour by tomorrow - and Mr Nucifora.

PN1070

THE SENIOR DEPUTY PRESIDENT: Well, you can draft that for me, Mr Rochfort, but unless it's got some agreed status with the union, I would only look at it as a suggestion.

PN1071

MR ROCHFORT: Yes, it would be in the form of the submissions - the exhibits - I've given you.

PN1072

THE SENIOR DEPUTY PRESIDENT: Yes but if it's agreed then I'm happy to give it that status such that I consider it as an agreed matter.

PN1073

MR ROCHFORT: Okay.

PN1074

THE SENIOR DEPUTY PRESIDENT: If it's not agreed, I'll take it as a further proposal from you.

PN1075

MR ROCHFORT: If your Honour please. I will undertake to get that to Mr Nucifora tomorrow and perhaps he might then to consider it fairly quickly and let your know whether he agrees or not.

PN1076

THE SENIOR DEPUTY PRESIDENT: All right, well, I assure you that I won't have completed a decision by tomorrow.

PN1077

MR ROCHFORT: I'm not too sure what to take from that, your Honour, but I'll get it as quickly as I can.

PN1078

THE SENIOR DEPUTY PRESIDENT: That's all right. Now, we go to item 15. I think we've covered item 15, haven't we?

PN1079

MR NUCIFORA: Yes, sorry, just to finish on that, your Honour, there is no agreement between ourselves and Mr Rochfort on the 6 to 5 spread. We raised our concerns with both the ordinary hours and shift work clauses and, of course, we have sought to ensure that it goes back to the existing award provision. And all we are saying is the afternoon shift currently in the award reads 6pm not 8pm.

PN1080

MR ROCHFORT: Well, that wasn't the basis of my proposal.

PN1081

THE SENIOR DEPUTY PRESIDENT: Yes.

PN1082

MR ROCHFORT: My proposal was to pick up on what you said, your Honour.

PN1083

THE SENIOR DEPUTY PRESIDENT: Yes, look, I understand that's your proposal. I now understand the union's proposal and I understand that you will be working hard to reach agreement, Mr Rochfort.

PN1084

MR ROCHFORT: Overnight, your Honour.

PN1085

THE SENIOR DEPUTY PRESIDENT: Item 16.

PN1086

MR NUCIFORA: Payment of annual leave on termination is not in the existing draft and I referred to the existing clause 14(g)(1). 29.3 doesn't included - I think it's just an oversight in drafting, your Honour, there wasn't any intention by anyone to leave that out.

PN1087

THE SENIOR DEPUTY PRESIDENT: I'm sorry, I'm lost. My understanding is clause 29.3 provides in the draft for a pro rata payment on the basis of four weeks annual leave at the ordinary rate of pay with the loading prescribed in 29.4 shall not apply. Now, my understanding or recollection of clause 14(g)(1) was that it was to a similar effect. You are telling me that is not the case.

PN1088

MR NUCIFORA: It doesn't go to the second sentence in 14(g)(1):

PN1089

The loading on annual leave prescribed ...(reads)... of employment.

PN1090

THE SENIOR DEPUTY PRESIDENT: I see.

PN1091

MR NUCIFORA: I think that was the part - - -

PN1092

THE SENIOR DEPUTY PRESIDENT: So you are saying there that if a full four week period is accrued, then the loading does apply?

PN1093

MR NUCIFORA: Yes. That was missing from that particular clause. I don't think there is a problem. I think that Mr Rochfort has agreed that that was an oversight between us in terms of the drafting - of the simplified award.

PN1094

THE SENIOR DEPUTY PRESIDENT: Mr Rochfort?

PN1095

MR ROCHFORT: We don't oppose the provision going in as it was, including the old (g)(2). We don't oppose that, your Honour.

PN1096

THE SENIOR DEPUTY PRESIDENT: Yes, well, the old (g)(1) and (g)(2) will not go into the simplified award in the form in which they currently exist. I work on the principle that if I cannot understand something on five reads then I won't include it in a simplified award and this one, I can assure you, took somewhat more than five reads but I will undertake to ensure that something that reflects the intention of the provisions is included.

PN1097

MR NUCIFORA: Your Honour, that leaves us with appendix A which is the data processing classifications and there is another issue of respondency but I will come back to that.

PN1098

The data processing classifications in appendix A are rather outdated, as you see. What I would say, your Honour, is when you look at the rates of pay that are there - and they are pre safety net adjustments - then I would - that would probably be one of the best indications of where it should sit in the structure. What we are saying is that the IT people that have now replaced the senior systems analyst, your supervisor programmer, you assistant analyst, your senior programmer, those rates of pay would probably give the best indication of where they should sit in the structure. There is no agreement between us and I have got a proposition for Mr Rochfort but I suspect that, from our position - well, given the rates that are there, that you are really looking at - starting from the top - the senior systems analyst would now be at level 8, the supervisor programmer would be at level 7, systems analyst at level 6 - - -

PN1099

THE SENIOR DEPUTY PRESIDENT: Mr Nucifora, was this issue addressed in the draft that the parties asked me to work from in the development of my decision?

PN1100

MR NUCIFORA: No, your Honour.

PN1101

THE SENIOR DEPUTY PRESIDENT: I didn't think so.

PN1102

MR NUCIFORA: It was discussed subsequently and we had missed it in the appendix as being an issue where we both agree it should be included in the structure, not as an additional stream, if you like, but those - what's replaced these, if you like, IT professionals or employees, should now - sorry, IT employees - should now be included in the descriptors in the classification structure and I think the best indication we've got to go on there is, if we all agree these people are still employed in the industry, then in fact those rates of pay would indicate that they - that if they match up with the rates of pay that are in the existing structure that's there then, in fact, that's probably where they are - where their work value or, if you like, the relativity sits.

PN1103

THE SENIOR DEPUTY PRESIDENT: Are you telling me there's no agreement on that issue?

PN1104

MR NUCIFORA: It seems that there's not. I have seen a draft - I hadn't had a chance to discuss it with Mr Rochfort but when I looked at the rates of pay there it seemed to match up with those grades that I mentioned and what I was suggesting was actually rationalising appendix A as descriptors in the classification structure - just in the classification structure.

PN1105

THE SENIOR DEPUTY PRESIDENT: Yes, I have no problem with that. It begs the question of whereabouts in the existing classification structure those positions fit?

PN1106

MR NUCIFORA: I'm sorry, your Honour, I propose that the senior systems analyst would go into grade 8, the supervisor programmer would go into grade 7, the assistant analyst would go into grade 6, the senior programmer into grade 5 and the programmer into grade 4 but I'm only relying on, to the extent I can, the rates of pay that are there and comparing them, if you like, with the rates of pay in this award as it was in '92 pre safety net adjustments and, of course, it had been - well, of course, the structure of what had been subject to the structural efficiency principle. Since then that has been readjusted so I've allowed for that readjustment. That is grade 3 being the Metal Trades rate equivalent and I believe that those - that those - the data processing personnel could be classified at those particular grades. I don't believe that is Mr Rochfort's position but that's the ASUs position.

PN1107

THE SENIOR DEPUTY PRESIDENT: I see. Mr Rochfort?

PN1108

MR ROCHFORT: No, it's not my position, your Honour, and only because Mr Nucifora has been overly generous. The situation is, if you look at the old appendix - could I say this: we are agreed that the data processing personnel appendix is outdated. It shouldn't be there standing alone. We have now a skills based award and which skills shall be properly recognised within the existing structure. It doesn't need an independent structure but if you look at the relativities of the - of the rates of pay in that old appendix A, the rough equation is that a programmer comes in at grade 1, relative to the structure for the normal employees under the award, a senior programmer at grade 2, a systems analyst at grade 3, a supervisor programmer at - I beg your pardon, a system analyst at about mid way between 4 and 5, a supervisor programmer at grade 5 and the senior systems analyst at grade 8.

PN1109

I took some advice from people better versed in these functions than I and I sought to slot those rates into the award relatively and therefore the grade 1, the programmer - I will say this, your Honour, that there are very few of these people. You don't have these people in your industry any more. These functions are usually performed - and I think Mr Nucifora suggested this - by IT consultants. However, I slotted the programmer in at grade 2 by adding to the classification of grade 2:

PN1110

An employee engaged in performing the work associated with the maintenance and implementation of existing software for a business shall be classified at no less than this grade -

PN1111

And so on. So, I've been - I've erred on the side or generosity there and in grade 3 I put in the senior programmer and described it this way:

PN1112

A person engaged in performing the work classified in a grade 2 and who exercises a higher level of skill in performing such work and who has knowledge of other software systems shall be classified in no less than this grade -

PN1113

and so on. So that I have included in this proposal an amendment to clause 19.2 classification structure to provide for those skills in a skills based award rather than - - -

PN1114

THE SENIOR DEPUTY PRESIDENT: Mr Rochfort, have the parties actually agreed, not just that these people still exist in the industry, but the extent to which you are in agreement on the definition of those particular classifications?

PN1115

MR ROCHFORT: No, your Honour, the original agreement as I thought - this - I was only faced with the other day, last Thursday - was that I thought we should delete appendix A because all of those functions would be otherwise accommodated.

PN1116

THE SENIOR DEPUTY PRESIDENT: Well, can I put it to you that a great deal of work went into revising the general classifications contained in the award so as to arrive at an agreed set of competencies.

PN1117

MR ROCHFORT: Yes.

PN1118

THE SENIOR DEPUTY PRESIDENT: And I think it might be consistent with that that the parties set down and, at the very minimum, agree on what is meant by a senior systems analyst and the other four position description - or position titles that are contained in appendix A. If you could agree on that, then I put it to you that either of two approaches would seem to me to be capable of fairly quickly resolving this issue.

PN1119

Firstly, it should be possible, on that basis to look at the classification structure proposed to see where those persons fit. If that's not possible, there are a number of awards of this Commission that deal with these types of persons and it's possible then to look at rates of pay, particularly where they have been assessed as properly fixed at minimum rates, which should then allow us to look back through the - the existing classification structure and slot those classifications in. I don't see that as a rocket science exercise but it seems both groups are asking me to do something when the job is only half complete.

PN1120

MR ROCHFORT: Well, with respect to that, your Honour, first of all, the appendix A is there for a specific reason. Your Honour may have heard a by-line earlier on that I was responsible for the original writing of the award and at that time there was no award covering these people. Those awards of the Commission have arisen subsequently to 1977. So, it was put in, in that form. Now, my view is that these functions, in the context of this industry, are described without being specific in the existing classification structure.

PN1121

Last Thursday Mr Nucifora raised with me the idea that there should be a far more specific identification of those. I don't disagree with that, although I don't think it's necessary. It's as simple as that. I mean, a programmer - there is no such thing as a programmer. What I've tried to do and what I've said already to your Honour, in describing that, is to say that a programmer is a person who - I'm sorry, in terms of the classification structure is:

PN1122

An employee engaged in performing the work associated with the maintenance and implementation of existing software for a business.

PN1123

THE SENIOR DEPUTY PRESIDENT: Yes, well, where is the senior systems analyst on that logic?

PN1124

MR ROCHFORT: In 6, your Honour:

PN1125

A person engaged to supervise the work of other systems analysts graded at grade 4 and above and who demonstrates a high level of skill and knowledge in relation to the work required of a systems analyst to be classified at no less than this grade.

PN1126

I have attempted to put in an identification. It is nothing more than an identification.

PN1127

THE SENIOR DEPUTY PRESIDENT: Look, in normal circumstances I wouldn't suggest it to the parties that they go back and ensure that they are in agreement on the functions that are covered by those particular position titles. I must say I'm not inclined toward doing this on this occasion. I don't want to send you back into another round of negotiations upon which I might have to end up by arbitrating. So I'll consider the various submissions and it may be that that requires that I go through myself to look at the process that I talked about and, that is, having regard to other awards with those classifications.

PN1128

MR ROCHFORT: Can I hand up to your Honour then an exhibit?

PN1129

THE SENIOR DEPUTY PRESIDENT: Certainly.

PN1130

MR ROCHFORT: Or a document, which I'll ask your Honour to mark as an exhibit, being the way I proposed to bring these matters in. There is no agreement on that. Mr Nucifora has advised you, your Honour, but it is my suggestion as to how to deal with that particular issue. Thank you, your Honour.

PN1131

THE SENIOR DEPUTY PRESIDENT: I will mark this as IRA9 noting that it's an employer proposal relevant to data process personnel classifications.

EXHIBIT #IRA9 EMPLOYER PROPOSAL RELEVANT TO DATA PROCESS PERSONNEL CLASSIFICATIONS

PN1132

THE SENIOR DEPUTY PRESIDENT: That completes the list of items. I understand the parties want to briefly comment on the issue of respondency.

PN1133

MR NUCIFORA: Thank you, your Honour. In relation to respondency, I think your Honour would have a copy of a new list of respondents provided by Mr Rochfort but I'm not sure when that might have happened.

PN1134

THE SENIOR DEPUTY PRESIDENT: I have graduated to two files on this particular award. There is no doubt that it's possibly in one of them, but unless you can tell me when, I must say, I'm going to be in some difficulty pulling it out at this stage of the proceedings. Is it an agreed document?

PN1135

MR NUCIFORA: No, I think we referred to this in one of our - in our submissions. Not in the - this is the 30 August submissions to you - a letter to your Honour in relation to respondency. Yes, in item 10 of our letter to yourself on 30 August. We note there:

PN1136

There are several employer respondents that have been removed and new respondents included.

PN1137

We said that in good faith we would not oppose the inclusion of an updated list of employers where there has been a name change and a change of address but we indicated there that we sought to reserve our rights at that point in terms of accepting that all employers removed either no longer exist and new respondents added to are correctly named and listed at the correct address.

PN1138

So what we say, your Honour, is that we have picked up - if you look at the existing award, more than half of them are not included in this list - in this new list that - I'm still not sure whether your Honour has that list?

PN1139

THE SENIOR DEPUTY PRESIDENT: Well, I haven't as yet but I haven't commenced to look for it. Yes, go on.

PN1140

MR NUCIFORA: But Mr Rochfort has spent some time going through this and updating it and now that we have had a look at it, there are some employers that are missing. In particular, DHL is one that we've referred to today. I know that Mr Rochfort doesn't represent them, but they are in the existing award. It does raise a question. I guess I, once again - and I'm reluctant to put this off at all - but it does require going through. If we look at the existing award and we find that I've gone through it and I'd estimate that about 60 per cent have been removed and that may be picked up by new names and new addresses there but we don't know that for sure. I have a concern that some employers may be removed that still exist but under a different name that aren't included on the new list and I'd have to say, given the time that Mr Rochfort and I have spent on other things in this award, we have not, at this point, gone through that and each and every one of those employers in detail.

PN1141

I have a concern of some employer respondents being taken out of the existing award and whether we are able to check to see whether they still exist. The other thing is that when you have new employers added to the list - the new list that Mr Rochfort has put together, it doesn't include, as I mentioned, DHL. Federal Express is there. I think there was some concern at some stage that it wasn't. Fed Ex is definitely there and I think at some stage we need to go through that virtually company by company.

PN1142

THE SENIOR DEPUTY PRESIDENT: You have had a couple of years.

PN1143

MR NUCIFORA: It could take that. That's why we've put it off until now, your Honour, but clearly there are some employers from 1992 that don't exist any more.

PN1144

THE SENIOR DEPUTY PRESIDENT: Well, Mr Nucifora, what about if I gave you a fortnight?

PN1145

MR NUCIFORA: Yes.

PN1146

THE SENIOR DEPUTY PRESIDENT: And said that a fortnight from today I would expect to receive written advice from the union that identifies whether the respondency list provided by the employers was agreed.

PN1147

MR NUCIFORA: Yes.

PN1148

THE SENIOR DEPUTY PRESIDENT: And to the extent that it is not agreed, the written advice should indicate to me why it is that a given employer should or should not be included in that respondency list.

PN1149

MR NUCIFORA: Yes. Yes, I understand.

PN1150

THE SENIOR DEPUTY PRESIDENT: Is that appropriate?

PN1151

MR NUCIFORA: Yes, that would be, your Honour. I just - there is another employer LEP is mentioned here in this list international - this is the new list - as Brambles subsidiary but it's now owned by another - - -

PN1152

THE SENIOR DEPUTY PRESIDENT: We're probably not going to resolve those issues now.

PN1153

MR NUCIFORA: No, I understand that but there are issues like that that we need to clarify in terms of existing respondency lists. I'm not in any way contesting the list that Mr Rochfort has put here but there are clearly some that have been deleted, some that have been updated, and others - - -

PN1154

THE SENIOR DEPUTY PRESIDENT: Yes, the onus will be on the union to work from that list and to provide this written advice to me.

PN1155

MR NUCIFORA: Yes, your Honour.

PN1156

MR ROCHFORT: Could I say, your Honour, that there is no guarantee by me that that list is correct, however, I do have extensive knowledge of the industry and it is one which has been prepared faithfully and according to my understanding. For example, there is a company mentioned in the respondency list - the first one in the old award - Raynors Customs and Transport Services Pty Limited. Now, I dare say Mr Bower doesn't know who that is and the reason is because it is now Federal Express. That was the company bought by me for Federal Express so I could start up operations in Australia and, of course, it no longer exists. Quite a few of those companies no longer exist or have been absorbed or are the subject of a name change. We have referred - look, DHL is something we - one which is known to me and just obviously an oversight and I apologise for that and there may be others.

PN1157

Now, if Mr Nucifora wants to bring them to my attention, I can perhaps give him an explanation of most of them. For example, Flyaway has become a number of different things over the years. It's picked up AFA Meadows Freight, and so forth, and the industry has become very much condensed and that was evidence given earlier before you today. But I will given an undertaking also, if Mr Nucifora wants to raise particular entities with me, that I can give him information from my knowledge.

PN1158

What I suggested to Mr Nucifora is that because that list is based on my knowledge, extensive as it is, of the industry, a useful starting point might be to make those the existing respondents with the other - any other entries on a reserve list so that they can be approached. For example, DHL haven't been part of any representations made in relation to the award because I haven't represented them.

PN1159

THE SENIOR DEPUTY PRESIDENT: Yes, well, the DHL issue is indeed an unfortunate one because until this morning I've been working on the basis of your advice to me that you are representing all the employers respondent to the award. So, I'll be considering that one. In the meantime - - -

PN1160

MR ROCHFORT: I beg your pardon, I thought I gave some exceptions; Wilson, for example.

PN1161

THE SENIOR DEPUTY PRESIDENT: Yes, well, in the meantime what I am proposing Mr Rochfort is that the onus is specifically on the ASU to take the list that you have provided, if necessary, to discuss it with you and to advise me of its position on the question of whether that list is agreed and, if it is not, then what particular employers ought to be either added to or taken from it.

PN1162

MR ROCHFORT: Yes, your Honour.

PN1163

THE SENIOR DEPUTY PRESIDENT: And presumably the basis of that position.

PN1164

MR ROCHFORT: And I will undertake to give that assistance where I can do. Of course, my - I think it's a fairly extensive knowledge of this industry but I don't claim it to be 100 per cent accurate.

PN1165

THE SENIOR DEPUTY PRESIDENT: All right. Well, that concludes our day. We have managed, as the parties indicated, to get through the matter in one day. I thank you for your forbearance in that regard, also for your forbearance in listening to my failing voice. I will reserve my decision on the matter.

PN1166

The normal practice that I follow is I give the parties an indication of the time frame within which they might expect that decision. The best I can do, in this particular instance, is to say I would hope to have it to the parties within the next four weeks.

PN1167

To the extent that it may or may not be necessary to engage in further proceedings on the question of respondency, obviously that stands alone. I will adjourn the matter on that basis, thank you.

ADJOURNED INDEFINITELY [5.25pm]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #FEDEX1 SUBMISSION DATED 14.2.03 PN259
EXHIBIT #ASU1 SUBMISSION DATED 11.2.03 OF FIVE PAGES PN260
EXHIBIT #IRA1 SUBMISSION DATED 7.3.03 PN261
EXHIBIT #IRA2 MATERIAL DATED 19.2.03 PN262
STEVEN JOHN BOWER, SWORN PN299
EXAMINATION-IN-CHIEF BY MR NUCIFORA PN299
CROSS-EXAMINATION BY MR ROCHFORT PN368
WITNESS WITHDREW PN599
CARLY NICOLA PARROTT, SWORN PN616
EXAMINATION-IN-CHIEF BY MR ROCHFORT PN616
CROSS-EXAMINATION BY MR NUCIFORA PN657
RE-EXAMINATION BY MR ROCHFORT PN688
WITNESS WITHDREW PN694
EXHIBIT #ASU2 UNION DRAFT OF CLAUSE 9 PN705
EXHIBIT #IRA4 EMPLOYER PROPOSAL FOR GARDEN LEAVE CLAUSE PN775
EXHIBIT #IRA5 EMPLOYER DRAFT 16.2 PN839
EXHIBIT #IRA6 DRAFT EMPLOYER CLAUSE 16..3 PN866
EXHIBIT #IRA7 EMPLOYER DRAFT OF CLAUSE 17.2.4 PN890
EXHIBIT #IRA8 EMPLOYER DRAFT CLAUSE 24.1.2 PN956
EXHIBIT #IRA9 EMPLOYER PROPOSAL RELEVANT TO DATA PROCESS PERSONNEL CLASSIFICATIONS PN1132