AG2003/115, Transcript of Proceedings [2003] AIRCTrans 2106 (2 June 2003)

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TRANSCRIPT OF PROCEEDINGS


O/N WT0292
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

DEPUTY PRESIDENT BLAIN

AG 2003/115

APPLICATION FOR VARIATION OF
CERTIFIED AGREEMENT

Application under section 170MD(2) of the Act
by Delta Matrix Pty Ltd to vary the Delta Matrix
Pty Ltd (Security Officers) Certified Agreement
2002

PERTH

2.16 PM, FRIDAY, 16 MAY 2003

PN1

MR D. CLARKE: I appear for the applicant in this matter.

PN2

THE DEPUTY PRESIDENT: Thank you Mr Clarke, would you wish to commence?

PN3

MR CLARKE: Thank you your Honour. Your Honour, my apologies for my lack of paperwork today, we had a power blackout last night and when the power did come back on I was a print cartridge short on attempting to get something printed out and taking off early this morning and I haven't been able to get back to my Bullsbrook office to get such information. So, my apologies about not having any further calculations typed out from the system. But what I have done, your Honour, is, I have calculations to check the no disadvantage test against the, first of all, the Queensland Award.

PN4

And what I have actually done your Honour, is looked at the Queensland rates of pay that have been applicable and certainly qualified with Delta Matrix. The normal hours under the award - under the certified agreement - the normal hours under the certified agreement are under number 11: Employment Classification Structure. The permanent rate for employees, who do Monday to Friday is $17.50 an hour and the permanent/shift-work employees are looking at $20 an hour, minimum.

PN5

Now, when I have converted the rates over I have come up with a figure of $1,680 for the people who would be working shift-work, given the hours under the document that I have put up for Delta Matrix Certified Agreement permanent, and I have a figure of $1,470, and if the employees required to do shift - and that is any hours that go over the shift hours. If an employee starts work at 12 midday and works till 12 midnight, then they would be on $20 an hour. So, the rate would be $1,680, it would be - it wouldn't be $17.50 an hour, it is $20 an hour. So, that is the shift-work provision for Level B regional of $20 per hour. And your Honour, I have established that because I have looked at the shift provisions of the Queensland Award - State Award, and I have a copy of those rates if you would like to view those rates your Honour?

PN6

THE DEPUTY PRESIDENT: Thank you.

PN7

MR CLARKE: My apologies for not having the 15 per cent loading, or the 20 per cent loading or the time-and-a-half loading, or the double time loading for the Queensland rates, but I have only got my handwritten notes your Honour, on that. And I didn't think it would be appropriate to take a copy of that and hand it up. But what I have done with the Queensland calculations, and I can certainly hand a sheet of this up, but I haven't run a copy of it as of yet. The hours in the model of Queensland, which is the second page, I have taken 16 hours - - -

PN8

THE DEPUTY PRESIDENT: Excuse me, second page of which?

PN9

MR CLARKE: Second page of this document, I have marked this document for my own calculations to compare the no disadvantage test and my apologies for not having a copy for you your Honour.

PN10

THE DEPUTY PRESIDENT: Is this the attachment to your letter of 3 May 2003, is that the second page to that?

PN11

MR CLARKE: Yes it is your Honour.

PN12

THE DEPUTY PRESIDENT: Yes, thank you.

PN13

MR CLARKE: Thank you. The base rate of pay for the Queensland model is 12.3894 cents per hour and working on 64 ordinary hours, would give you an amount of $792.92. Now, what I have attempted to do is cut it down to 60 hours which - - -

PN14

THE DEPUTY PRESIDENT: Can I ask you why you get - or how you get 64 hours. Where does that derive from?

PN15

MR CLARKE: Yes. Ordinary hours worked during the week. Instead of leaving 6 hours on a Saturday I am making it 8 hours on a Saturday. So, I will be taking 2 hours off a Friday or a Thursday.

PN16

THE DEPUTY PRESIDENT: And why are you doing that?

PN17

MR CLARKE: For the possibility that a shift could be worked, under the Queensland roster, of 8 hours on a Saturday and not 6. To prove the no disadvantage test would apply to the Delta Matrix Certified Agreement and the application for the variation. What I am attempting to do is increase the earning capacity under the Queensland Award, to show that the no disadvantage test would still be met by the proposed amendment to the existing certified agreement. And what that would do is increase the rate, and I have taken Sunday as the rate because the double time on Sunday is what is required under the Queensland penalty provisions.

PN18

So, what I have done your Honour, is got 60 ordinary hours during the week, which gives me a figure of $743.36. I have then added the 16 hours for the Sunday at double time, which gives me a figure of $396.32, which gives me a total wage for the week of $1,139.68. I have then taken the 60 hours and added a shift provision of 15 per cent onto that 60 hours and that gives me a base figure of $854.86, added to a figure of $396.32, gives me a total gross for the fortnight of $1,251.18.

PN19

The third equation that I have undertaken is the 25 per cent shift loading that would occur during the week, if an employee was rostered. And still applying the highest rates that could be paid on - which is a Sunday at double time, I have applied the $396.32 and with the 25 per cent shift loading on the 60 hours I get a figure of $929.20. The total wage for the fortnight is $1,325.52. And when we go back to the first page, by adding a $20 shift allowance into that figure, we get a figure of $1,680. So, under the Queensland model of applying the hours, there is still a marked difference - an improvement of $355.

PN20

Now, I know the hours are at 84 hours, on the Delta Matrix Certified Agreement and the hours are 76 on the Queensland model. And if you take the extra 8 hours into consideration of work and you are looking at time-and-a-half and double time, I believe there is an approximate increase for that for the same hours, looking at penalty provisions, of just under $200. So, there is $155 clear benefit. But the benefit goes further because there are seven shifts in the Delta Matrix Agreement and there are 10 shifts required in the Queensland model under the award.

PN21

So, there is a benefit of three extra days off for roughly the same amount of hours. So, there is an additional benefit there. The next document that I looked at was the New South Wales State Award, and I have a copy of these rates, I would like to hand up if I may. I'm sorry I've marked it.

PN22

THE DEPUTY PRESIDENT: Thank you.

PN23

MR CLARKE: I have a copy here your Honour, that I have been using, but it is from the Australian Liquor Hospitality Miscellaneous Union, New South Wales Branch, which has all the rates and if you would like me to hand this up after I certainly will, to help you with the calculations, because it certainly assisted me. It is not that I didn't trust the union with their calculations, the calculations are spot on, but it expedited my purpose for sitting down and calculating the New South Wales. So, the New South Wales are higher rates of pay than the Queensland model.

PN24

And what I looked at for the New South Wales Award rates was - I have taken the 60 hours base of $13.43 an hour, which has given me a figure of $805.80. I have then taken 16 hours at the Saturday rate of $20.15 an hour, which gives me a figure of $32.40. If I may hand this up, this may assist you as it has assisted me and my apologies for not getting any copies at this stage your Honour.

PN25

THE DEPUTY PRESIDENT: Thank you Mr Clarke.

PN26

MR CLARKE: And what I have done your Honour, and I will hand this document up with the New South Wales and Queensland rates on it. What I have done is applied 60 hours at $13.43, which gives me $805.80. Now 16 hours at the Saturday rate of $20.15 an hour gives me $322.40. So, I have added the weekly wage to the Saturday rate - the weekly hours and the Saturday which gives me 76 hours and I come up with a figure of $1,128.20 for Saturday. For Sunday it is double time, $26.87 by the 16 hours gives me $429.92, added to the base 60 hours during the week of $805, gives me $1,235.72. So, that is the total for the Sunday and I am stating that compared to the loading that would be applicable, under the certified agreement, the maximum that could be paid - that could be paid under the New South Wales Agreement for the hours is $1,477.46.

PN27

And the maximum that will be paid under the Delta Matrix Certified Agreement is $1680. So, I certainly looked at this and allowed the benefit of the doubt by increasing the hours on Sunday to test the application of the certified agreement against the two other awards in applying the no disadvantage test and I think it is an area that I have satisfied myself and my client in regards to the application of that rate of $20 an hour that applies to shift - permanent people on shift. So, I wasn't using the $17.50 an hour. I did use the $17.50 an hour for the ordinary hours. But there is a shift provision under the New South Wales and Queensland Award, and the certified agreement, with the rates described in it, still put an employee in a far better position time wise, roster wise and payment wise to earn more money under the proposed amendment to the certified agreement for New South Wales and Queensland.

PN28

And I submit to you your Honour, that the no disadvantage test has more than been met. And allowing for those hours under the Queensland, but certainly under the New South Wales Award, which has higher rates than Queensland and WA, the advantage for greater earning capacity for an employee under the Delta Matrix Certified Agreement is - it doesn't match it, it is better. The capacity to earn more money is there in less starts during the week. Once again I say to you your Honour, the no disadvantage test, I have checked it and it has been met. I do apologise about my lack of documentation that I have handed up.

PN29

If you like your Honour, I can get you further information, but I have written on these documents here, but I apologise about the format it is just my writing on the rates that I have come up with, if you are prepared to accept that your Honour.

PN30

THE DEPUTY PRESIDENT: Thank you Mr Clarke.

PN31

MR CLARKE: Thank you.

PN32

THE DEPUTY PRESIDENT: So, in summary then Mr Clarke, is it your submission that the no disadvantage test would be passed for the variation in relation to both New South Wales and Queensland?

PN33

MR CLARKE: Yes it is your Honour.

PN34

THE DEPUTY PRESIDENT: And is it your submission that the comparison that you have put forward to the Commission shows that the remuneration under the certified agreement, if varied, would exceed clearly the remuneration in the two awards that you have used as the comparators?

PN35

MR CLARKE: Yes it is your Honour.

PN36

THE DEPUTY PRESIDENT: And is it your submission that a typical employee, based on those calculations that you have given me, would therefore be financially better off under the agreement as varied, than that typical employee would be under either of the two awards, or both?

PN37

MR CLARKE: Yes the employee would be better off under the certified agreement, compared to the State Awards in Queensland and New South Wales.

PN38

THE DEPUTY PRESIDENT: A typical employee would be better off?

PN39

MR CLARKE: A typical employee, yes.

PN40

THE DEPUTY PRESIDENT: And are you putting it to me that the detailed information and research that you have undertaken demonstrates, beyond doubt, that the typical employee would therefore be advantaged under the certified agreement, in comparison to the awards in question?

PN41

MR CLARKE: Yes, I certainly submit that to you your Honour.

PN42

THE DEPUTY PRESIDENT: Can I ask why a Level 1 officer was used in particular in the comparisons?

PN43

MR CLARKE: The Level 1 officer, I believe, would be doing the same or similar work and I actually did take up a particular level, a higher level, and I did check that against the certified agreement your Honour, and the benefit was reduced slightly because of the adjustment in the rates. But the rates for a Level 5, for the double time go from $24.77 to $28, so we are looking at $4 and hour. And when you look at the 16 hours worked, you were looking at $64 for the double time, plus the $16.20 an hour. So, there is still a benefit - or the $14 is base, so it is not even $2. So, there is another - going up to Level 5, there was another $100.

PN44

And when you are comparing the Level 1 to the $1,680, you then look at the levels in the certified agreement. And the levels in the certified agreement, they go up to $20 an hour. But the second schedule looks at the permanent part-time, contains units 2 and 3 and 4 of security certified, that is Level 2 regional. The rate then goes to $22 an hour. So, as the rates can go up with the levels, so do the levels of the security officers. So, it is not as though the security officers are frozen at $17.50 an hour, or $20 an hour. There is incentive to obtain a security 1 certificate and certainly go on to obtaining units 2, 3 and 4, and go up to $22 an hour.

PN45

So, Level 2 site is $25 an hour.Level 3 site is $27 an hour so Level 4, which is the diploma graduate, is $29 an hour. So the rates go up under the certified as well. It wasn't a fixed rate. So it would be unfair to turn around and put everyone under the same rate and put people in charge and say: Well, you're all going to get the same rate. This scale of rates here also increases with the 12 to 18 months. So there is incentive in its design for employees to be retained and there is also a higher rate of pay to be attained and certainly, as comparing - I did forget about that when I was calculating and kept coming back to the base, the 17.50 an hour, and then the $20 an hour.

PN46

But then, considering the other levels that are available in the second part of the employment classification structure, the levels there, certainly, can go up as well. But comparing it to those rates, the rates go up and there is still no disadvantage, when you look at the Level 5 and you look at the Level 4, because they've gone from $20 an hour to $9 an hour which is a very very big increase on - the award of 12.65 goes up to Level 5 of $14.17. So the comparison with the Level 5 and the Level 4 is almost double. Well, it is double, the hourly rate.

PN47

THE DEPUTY PRESIDENT: Do I interpret you correctly as saying that the Level 1 rate was used as an example, rather than as a definitive or a comprehensive submission in relation to establishing the superiority of the remuneration to the agreement compared to the awards?

PN48

MR CLARKE: Yes, it was used as an example and instead of going through each of the levels I then did go to Level 5, to check the Level 5, believing, prior to doing it, that Level 5 would exceed $1680. Would exceed $1470, but it didn't. It didn't do it. So instead of going through to the levels I started at Level 1 and went straight to Level 5 with the belief that Level 5 would, not even doing any calculations relying on the calculator, I believed that it would. But it didn't, it just didn't do it. The normal hours and the shift provisions under the certified still show a benefit, financial benefit, under Level 5. The increase of - - -

PN49

THE DEPUTY PRESIDENT: A benefit under the agreement compared to the award. Is that correct?

PN50

MR CLARKE: Yes. Yes, your Honour. It still showed a benefit and when you look at the double time that can be applied, it is 16 hours at roughly $4 an hour. So instead of looking at $100 or $200 you're looking at an extra $4, an extra $60 or $64 being added on for the double time under Level 5. Then you are looking at $14.17 an hour and there is still a benefit and I think it is important that I did that. I did add the shift provisions in there to look at the benefit of any doubts or reservations I may have with the 20 and 25 per cent. And the certified still comes up better financially than the Queensland and New South Wales award, especially the New South Wales award because the rates are higher there than the Queensland award, and the WA award.

PN51

The benefits I've done for the roster provisions have just been done on a fortnight. I have not projected an annual 26 week period but, certainly, the cost benefit to an employee under the certified, under whatever level, compared to the Queensland and New South Wales award, any employee employed/engaged under the certified agreement will be financially better off, in my cost comparison between the awards, on any of the levels and rates between the certified and the two state awards.

PN52

THE DEPUTY PRESIDENT: Did I hear you correctly to say that that is definitely the case when shift allowances are included?

PN53

MR CLARKE: Yes.

PN54

THE DEPUTY PRESIDENT: Did you consider overtime allowances?

PN55

MR CLARKE: Yes, I did.

PN56

THE DEPUTY PRESIDENT: Is their conclusion the same?

PN57

MR CLARKE: Yes, it is.

PN58

THE DEPUTY PRESIDENT: Did you take into account, as I understand from the New South Wales award, that it provides for no more than 10 hours per day to be worked?

PN59

MR CLARKE: No. No, I didn't take that into consideration.

PN60

THE DEPUTY PRESIDENT: Is that a relevant consideration in your submission?

PN61

MR CLARKE: No, I don't believe it is relevant because the situation is I still believe, if taken into consideration, you would be looking at 2 hours at double time. Now, if you are looking at 2 hours, you have already been paid for 12 hours so you have got 12 hours pay against 10 hours pay plus 2 hours at double time. So when you equate that out, you would be looking at approximately - you can do it a number of ways. 14 hours of ordinary time or time and a half for the first two or double time. Taking the double time component, you are looking at 2 hours of double time.

PN62

You are still looking at a rate of pay that I believe, applicable under the New South Wales award, would still fall short of the $1680. So the difference between what can be worked and what can be paid and certainly, looking at that, I do not believe and I have not found that the comparison between, instead of time and a half and double time, even if you looked at that, is still far better off for an employee to come under the proposed amendments to the certified. He still earns more money.

PN63

THE DEPUTY PRESIDENT: So your submission is then that the award ceiling of 10 hours per day would not be a factor which, when taken into account, would disadvantage employees under the agreement compared to the award. Is that your submission?

PN64

MR CLARKE: It is that. And if they did come back to the 10 hours, they don't drop back to that rate of pay. If they did the 8 hours, the 7.6 hours, the 9 hours, the 10 hours, their rate of earning is far greater. Their earning capacity is far greater under the certified because they have a higher base rate of pay for starters. And for a shift vision, it certainly equates to a benefit. When you put in the same hours, using the same hours or adding to or taking away, there is still a benefit. There is no attempt to turn around and marginalise people under the certified.

PN65

The areas of this were looked at, were looked at seriously and the aspect that was looked at, to see if an employee could be disadvantaged in applying the certified to the New South Wales, and we don't see or believe that an employee working in New South Wales under the Delta Matrix Certified Agreement, with a variation to allow an employee to work in New South Wales under the certified disagreement will be disadvantaged.

PN66

The employee will have an advantage in his earning capacity. He will be taking home more money than what he would do under the New South Wales State Award. The main concern I had was going up the levels when we looked at the levels, but certainly with the Queensland model, we certainly looked very hard at that, but I found a financial advantage to employees under the certified.

PN67

THE DEPUTY PRESIDENT: Leaving aside the financial advantage on your submission of the employees under the certified agreement compared to the Queensland Award, I was referring in my question there to clause 14.1.4 of the Queensland Award which in effect, as I understand it, sets a maximum of 10 consecutive hours per day or certainly per shift in one 24-hour period. In other words, per day. My question here is, does the agreement in any way disadvantage the employees compared to that provision?

PN68

MR CLARKE: No.

PN69

THE DEPUTY PRESIDENT: It does not?

PN70

MR CLARKE: No. I don't believe it does, no.

PN71

THE DEPUTY PRESIDENT: And can you clarify the reason for that?

PN72

MR CLARKE: Well, if an employee was going to suffer any disadvantage, then certainly overtime provisions would cut in. And looking at such overtime provisions to come into the Queensland model, we say, would restrict the hours proposed and go back to the Queensland model of 8 hours under the certified. And the employee is still better off. He has just got a larger spread of hours. But in the shortened hours - shifts to start, certainly there is an advantage. But even if you take that overtime component into the equation, then certainly there is still no disadvantage.

PN73

Now, the question begs, is there a requirement for a future employee to work such hours, who is used to doing an 8-hour shift or 10-hour shift and then saying, well, the shift provisions are 12 hours, take it or leave it. No, that is not. If an employee, for whatever reason, can't complete a 12-hour shift up to 12 hours, it is a maximum 42 hours per week and it is not a matter of saying: You do the 12 hours, they are the shift provisions, take it or leave it. If it can't be done for whatever reason, then it won't be. It will not be done.

PN74

There will not be a disadvantage to an employee and for any employer to go down that path is silly and risky and to wear the wrath of an Occ Health and Safety inspector for something that an employer would be silly to turn around and go down. And I am aware of one client at the moment who has - - -

PN75

THE DEPUTY PRESIDENT: That, by the way, does answer that question and I don't want to cut you off, but it is not necessary to continue with that explanation unless you wish to.

PN76

MR CLARKE: No. Thank you, no.

PN77

THE DEPUTY PRESIDENT: My next question was in relation to the tables that you put forward and it concerns particularly the fact that in table 2 for both States, a Sunday rate was put in, whereas for table 1, a Sunday rate was not put in. I wonder if you could explain that to me on the basis of the submissions of the two tables, table 1 versus table 2?

PN78

MR CLARKE: The table 1 rate, your Honour, is the base rate of $17.50 and that encompasses the allowances for any shift provisions that may be rostered and worked for an employee. So, the rate for Sunday, under the certified agreement - - -

PN79

THE DEPUTY PRESIDENT: The two tables appear to be different in that one refers to the days worked and the total hours worked and various percentage add-ons etcetera. Where table two refers to an entitlement, hours, rate, amount etcetera and more importantly comes up with their total wage. Are you with me as to the difference between the two tables, one and two. The fact that the Sunday rate is not included in table one, but in table two it is put in as a rate?

PN80

MR CLARKE: Yes.

PN81

THE DEPUTY PRESIDENT: Do you understand the question?

PN82

MR CLARKE: Yes I do.

PN83

THE DEPUTY PRESIDENT: And I wonder if you could answer that. Why it is in one table, which is number two and not in one?

PN84

MR CLARKE: Table 1 is the certified at $17.50 an hour. The reason I have got that is because for our payroll system that we have developed, we use the Saturday and what I have done in the - in my handwriting down below is deleted the Saturday and that is what I wanted to show with the additional calculation sheets - was there were no hours on the Saturday, but there was not 12, but 16 hours on the Sunday. And that is what I have written down below, 16 hours - well $25.30 multiplied by 8 is $198 for one Sunday.

PN85

There are two Sundays in the fortnight, so therefore it is multiplied by two which gives you $396.32 for the Sunday. The two Sundays in the month. Add it on to the base rate of $743.36, gives a total wage of $1,139.68. My apologies for not having that printed out, but that was the document that I couldn't get printed out. Because what I have done was - instead of taking the Saturday rate under the Award, I took the Sunday rate which is double time, to prove that - the no disadvantage test, because when you go back to the ordinary time worked, there is a Sunday worked at 12 hours under the certified.

PN86

So, in all fairness to showing the no disadvantage test, we haven't got one Sunday, we've got two Sundays, we've got - to start off we have got two Saturdays which gives you a total figure of $1,015.88. So, that is with 6 hours worked on each of the two Saturdays. Instead of taking 8 hours on the Saturday I thought: no, no, we will go to the double time on the Sunday, which is what we did. The double time rate of $25.30 multiplied by 8, giving us $198.16 for one Sunday. For two Sundays at $396.32, added to the 60 ordinary hours, gives us $1,139. I then took the 60 hours and added 15 per cent loading to that. So, instead of $743 I got $854.

PN87

I then took the 60 hours and added on it the 25 per cent shift loading, which gave me $929. Added to the Sunday of $396, it gives me wages - the maximum wages of $1,325.52. And that is what I have done your Honour, to show hours to maximise work under the award and the rates - with the award rates.

PN88

THE DEPUTY PRESIDENT: And can you clarify for me that these are two weekly periods - 14 day periods, is this the period that is concerned?

PN89

MR CLARKE: Yes it is.

PN90

THE DEPUTY PRESIDENT: Yes.

PN91

MR CLARKE: Yes.

PN92

THE DEPUTY PRESIDENT: So, in summary, was that to provide a further case in support of the agreement being superior to the award in terms of remuneration to a typical employee over a two week period?

PN93

MR CLARKE: Yes it is.

PN94

THE DEPUTY PRESIDENT: In both States?

PN95

MR CLARKE: Both States.

PN96

THE DEPUTY PRESIDENT: Thank you. Well, you have answered all the questions that I had and I wondered if you might like, perhaps given that it has been quite a lengthy hearing, give me a summary submission of why the variation should be approved by the Commission, and particularly in relation to the no disadvantage test?

PN97

MR CLARKE: Thank you your Honour. Your Honour, we seek to have our amendment approved if possible today, on the grounds that the no disadvantage test has more than been met with the comparison with the New South Wales Award and the Queensland State Award, pertaining to security officers working in those two States. Comparing the rates, the over time provisions and the shift provisions in those States to ours that are worked under the award, compared to the hours and rates under the Delta Matrix Certified Agreement, we say that the Delta Matrix Certified Agreement, more than meets the existing wages that would be paid under the New South Wales and Queensland Awards.

PN98

The Delta Matrix Certified Agreement is far superior in its base rates and not only that, but the availability to increase such rates is there, with the levels. So, it is not limited to a $17.50 rate. The shift provisions, if required, go straight up to $3 an hour more - or $2.50 more, to $20 an hour. So, that allows for any shift provisions. It is attractive as far as we are concerned in the essence that it will put more money in a normal employees pocket - a gross amount I should say. I don't - there should be more money after the taxation comes out.

PN99

But the earning capacity is there for less shifts to be done, comparative hours to be done and for a greater earning capacity. And the no disadvantage test has, we say, been met and there is an advantage to any employee to work under the certified agreement to earn more money than he can under the Queensland Award and the New South Wales Award. And I put it - I submit to you your Honour, that the no disadvantage test has been met in relation to what is needed for the amendment to go through and I am asking you to grant us the amendment necessary. Thank you, your Honour.

PN100

THE DEPUTY PRESIDENT: Thank you Mr Clarke. This is an application pursuant to part 6B, Division 7, section 170MD of the Workplace Relations Act 1996, to vary clause 5F of the Delta Matrix Pty Ltd Security Officers Certified Agreement 2002. Having heard Mr D. Clarke, on behalf of Delta Matrix Pty Ltd, the applicant. And having read the statutory declaration filed by Ms Z. Ludin, on behalf of the applicant and the letter consenting to the variation to the agreement by the employees of the applicant, Mr McGahan, Mr Leahy and Mr Hodgson, I am satisfied that the agreement to be varied, that a valid majority of persons employed at the time whose employment would be subject to the agreement genuinely approved it. And on the basis of the detailed submissions made to me both orally and in writing, it passes the no disadvantage test.

PN101

The Commission is required to certify the agreement as varied as if it were a new agreement whose certification was applied for under this part of the Act. Accordingly the agreement, AG821421 PR927349 will be varied by deleting the current clause 5F and inserting a new clause 5F as follows:

PN102

The State means the State of Western Australia, Queensland and New South Wales.

PN103

The order will have effect from 16 May 2003, to operate in accordance with its terms from the same date. The order will issue in due course. I adjourn this hearing.

ADJOURNED INDEFINITELY [3.10pm]