AG2003/9060, Transcript of Proceedings [2003] AIRCTrans 4919 (6 November 2003)

AUSCRIPT PTY LTD
ABN 76 082 664 220

Level 4, 179 Queen St MELBOURNE Vic 3000
(GPO Box 1114 MELBOURNE Vic 3001)
Tel:[phone] Fax:[phone]

TRANSCRIPT OF PROCEEDINGS


O/N 5077

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER LEWIN

AG2003/9060

APPLICATION FOR CERTIFICATION OF
AGREEMENT

Application under section 170LJ of the Act
by Metrolink Victoria Pty Ltd as agent for
the Yarra Trams Partnership and Others for
certification of the Yarra Trams (Operations)
Enterprise Agreement 2003

MELBOURNE

2.31 PM, WEDNESDAY, 22 OCTOBER 2003

PN1

MR V. GOSTENCNIK: I seek leave to appear on behalf of the employer applicant in this matter.

PN2

MR A. THOMAS: I appear on behalf of the Rail, Tram and Bus Union and appearing with me is MR P. ALTIERI.

PN3

THE COMMISSIONER: Thanks. There is no objection I take it to Mr Gostencnik's appearance?

PN4

MR THOMAS: Sorry, Commissioner?

PN5

THE COMMISSIONER: There is no objection to Mr Gostencnik's appearance?

PN6

MR THOMAS: No, there isn't, no.

PN7

THE COMMISSIONER: Leave is granted, Mr Gostencnik. Yes?

PN8

MR GOSTENCNIK: Thank you, Commissioner. I should by way of introduction just tell the Commission a little bit about the context of these negotiations and the making of this agreement. As the Commission will be aware last year the National Express Group so far as its operations in Australia were concerned went into administration, administrators and managers have been appointed and the National Express Group vacated its franchise with the Victorian Government to conduct public transport services in Victoria.

PN9

They were, as no doubt you would be aware, concerned with the operations of relevantly the M-Tram business in Victoria. Since that time the Victorian Government has been engaged in a process of negotiating with interested parties with the view to another private operator taking over the franchise of M-Tram. My client, and for the record I will simply refer to them as Yarra Trams, is already a party to a franchise agreement, it conducts the Yarra Trams business in Victoria and it is presently in negotiations with the Victorian Government and the administrator with the view to acquiring assets of M-Tram and the franchise of M-Tram and consequently employees who are currently employed with M-Tram.

PN10

So the negotiations between my client and the union have involved both issues concerning existing employees, but also making provision for the possibility that shortly in the future the Yarra Trams organisation will acquire part of the business formerly conducted by M-Tram. That has necessitated consultation not only with the union and employees but also with the Victorian Government and, as I say, the administrator and their representatives in order to secure the possibility of an orderly transfer of employees from M-Tram to Yarra Trams and indeed to facilitate the integration of one business upon the acquisition; because so far as my client was concerned the last thing it wanted to do is to have to conduct two disparate businesses, it wanted an integrated business from day one and this agreement goes a long way in securing that.

PN11

The agreement is also the first step in consolidating the terms and conditions of employment of Yarra Trams employees into a single document. You may be aware, Commissioner, that the terms and conditions of employment of employees at Yarra Trams, at least those that are going to be subject to this agreement, is made up an amalgam of past certified agreements, some of which Yarra Trams is a direct party to, some of which is a party bound by reason of a transmission of business. There are also a myriad of awards which regulate or potentially regulate the employment of Yarra Trams employees including employees who are the subject of or who will be covered by this agreement.

PN12

What the parties have endeavoured to do is, at least as a first stage, to incorporate certain of the terms of the existing certified agreements into this agreement as terms of this agreement, as well as providing for the ongoing operation of relevant awards, and indeed taking into account the necessity to provide for superseding awards which will arise in the context of award simplification which is occurring. So that environment has meant that the negotiations have been complex and that we have had to make provision for events which may or may not happen.

PN13

But all that said each of the provisions which deal with the possibility of M-Tram employees becoming Yarra Tram employees nevertheless pertain to the requisite relationship since they will only be triggered in the event that those M-Tram employees become employees at Yarra Trams. In other words, the provisions will have no operation until and unless employment commences with us. The agreement has been negotiated in an environment where there hasn't been any industrial action, in an environment of uncertainty surrounding the M-Tram business, and it has shown, in our submission, a great deal of commitment on the part of the union and its members and the employees of Yarra Trams to the ongoing viability of the Yarra Trams business and principally the need to integrate potentially the M-Tram business into our business.

PN14

And for all of those reasons it has been a significant negotiation and I am sure both parties are pleased with its outcome. The agreement itself provides for a 13 per cent wage increase over the life of the agreement and the incremental increases are set out, Commissioner, at clause 15. But I might take the Commission through the statutory requirements for certification if I may. Commissioner, the first point we make is that the agreement does not relate to the whole of the single business at Yarra Trams.

PN15

It relates to a distinct operational unit within a single business, so it relates to part of a single business which is operationally distinct and that part of the single business is Yarra Trams Tram Operations. There are other agreements presently being negotiated with relevant parties in respect of maintenance, administration and the like. So far as our capacity to make an agreement is concerned, Commissioner, the employer is a constitutional corporation and if necessary we also would rely upon section 494(2), the referral power, if I can put it in those terms, to found our capacity to enter into an agreement under division 2.

PN16

None of these things I think, sir, are uncontested but I will deal with them for the record. The union, the RTBU, plainly has a member employed within the area of coverage of the certified agreement and, in our submission, is entitled to represent the interests of that member. It would surprise me, Commissioner, whether there were any non-union members in this particular area but nevertheless that pre-condition is satisfied in our submission. You will see, Commissioner, from the stat decs that have been filed by the parties that there was genuine approval for the agreement by a valid majority of persons employed and also whose employment will be subject to the agreement.

PN17

THE COMMISSIONER: Do you know anything about that?

PN18

MR GOSTENCNIK: Sorry?

PN19

THE COMMISSIONER: Do you know anything about how that valid majority was achieved?

PN20

MR GOSTENCNIK: It is set out in the stat dec, sir, but on my instructions each employee was given an opportunity to vote. They were notified of meetings at which votes would be conducted. Those meetings were conducted at various depots within the operational unit and the union conducted the vote and, as I understand it, kept a record of the results.

PN21

THE COMMISSIONER: Yes, I think that is why I asked the question because if I go to 6.7 of the declaration of Mr Davies, and I think it is the same for Mr Altieri, the terms are identical, and it tells me about the way in which the opportunity to record some sort of a vote was enabled to some degree. It doesn't actually tell me what the result was.

PN22

MR THOMAS: Commissioner, we can provide you with - - -

PN23

THE COMMISSIONER: Yes, all right. Well, I just didn't know whether Mr Gostencnik was provided with that information, but I think in the circumstances for the 577 people involved there probably needs to be a little bit of information about what the outcome of all this actually was.

PN24

MR GOSTENCNIK: Yes. The stat decs, of course, indicate that there was a valid majority.

PN25

THE COMMISSIONER: Yes, I appreciate that, the people have said that but - - -

PN26

MR GOSTENCNIK: The union has that information and I am sure they will hand it to the Commission.

PN27

THE COMMISSIONER: Yes, I think it would be desirable if it was recorded.

PN28

MR GOSTENCNIK: Yes. Again, in the statutory declarations you will see the details of the steps that were taken both to explain the agreement to employees to be covered by it and the steps that were taken to ensure that people had an opportunity to vote and a reasonable time, in our submission, was given for the employees to decide whether or not they would approve the agreement. Commissioner, again it is our submission that the agreement passes the no-disadvantage test. There are no reductions vis-a-vis the terms and conditions of employment.

PN29

There is a dispute settlement procedure at clause 20. The dispute settlement procedure confers limited jurisdiction on the Commission to deal with disputes. It allows either party to request the Commission to deal with a dispute by way of conciliation and allows the Commission to arbitrate a dispute in circumstances where both parties agree.

PN30

THE COMMISSIONER: Just in relation to the no disadvantage test, it has been exercising my mind as to how - and some work has been put in train in relation to it - it is a rather complex read, if you like, given the number of instruments, either agreements or awards which this takes the place of or in some cases I think adopts. I am a little bit perplexed as to how I could, apart from just accepting the statement in the statutory declarations, satisfy myself that the agreement passes the no disadvantage test. I am confident that it does, but apart from just saying, well, somebody has ticked a box on a piece of paper so therefore it must result in no reduction or no overall reduction, in fact both boxes are ticked, so that creates a little bit of ambiguity.

PN31

I am operating from the perspective that the no reduction at all box has been ticked in the first instance, but I accept that the no overall reduction box has also been ticked. I don't think, with all due respect, given the size of the workforce in particular - I mean it is probably not relevant what the size of the workforce is, it is probably more relevant to consider the complexity of the instrument and the way that it interacts with a number of others for the purposes of determining of whether or not there is a no disadvantage test question or not.

PN32

I was actually thinking today that the parties may be able to assist the Commission by providing some information as to how the problem could be - - -

PN33

MR GOSTENCNIK: Sorry, I didn't catch that last bit.

PN34

THE COMMISSIONER: I was hoping that the parties might be able to produce some information that would assist the Commission reaching a substantive conclusion that the agreement passes the no disadvantage test rather than one which relies entirely on the statutory declaration.

PN35

MR GOSTENCNIK: Yes. If it will assist the Commission we can certainly undertake that analysis and provide you with a document of comparable terms.

PN36

THE COMMISSIONER: I appreciate that the agreement doesn't operate until it is certified, but nevertheless the wage increases are dated.

PN37

MR GOSTENCNIK: The wage increases - - -

PN38

THE COMMISSIONER: The wage increases provided for under the agreement are dated, they start in July 2003.

PN39

MR GOSTENCNIK: Yes, there is a - - -

PN40

THE COMMISSIONER: So that it is not as if the wage increases - the accrual of the benefits of the agreement, you know, wouldn't be deferred by any slight delay in the consideration - - -

PN41

MR GOSTENCNIK: Well, it is certainly my client's intention to act as though the wage increases applied from the date that they have agreed. But can I perhaps - - -

PN42

THE COMMISSIONER: Could I just explain to you why?

PN43

MR GOSTENCNIK: Yes.

PN44

THE COMMISSIONER: There was a Full Bench decision published recently that concerns the application of the no disadvantage test.

PN45

MR GOSTENCNIK: Yes.

PN46

THE COMMISSIONER: It was an appeal decision and I formed part of the majority of the quorum in that matter and I think under the circumstances I need to be particularly diligent in ensuring that the principles enunciated in that decision are applied.

PN47

MR GOSTENCNIK: Yes, I appreciate that, Commissioner, and as I say if it assists the Commission, and you have requested that information, we will no doubt provide - we will provide it.

PN48

THE COMMISSIONER: As I say, you know, I am mindful of the context in which the agreement has been formed. It has been formed by, you know, a large employer servicing state government employment, obviously mindful of the government's industrial policies. It has been negotiated with a union which has a long and very active association with the industry in representing the interests of the employees. Under these circumstances one can be reasonably confident the parties have had a very extensive detailed negotiation, that they are familiar with the operations of the Act, and it is highly unlikely that they have reached an agreement which will cause any disadvantage when compared with the award. That is the starting point.

PN49

MR GOSTENCNIK: Yes.

PN50

THE COMMISSIONER: However, for the purposes of my satisfaction, I think I need something other than just the statutory declaration.

PN51

MR GOSTENCNIK: Yes, well, we can certainly provide you with a - - -

PN52

THE COMMISSIONER: Could I just indicate to you, I will attempt to facilitate that so that it doesn't get out of hand in the sense that you are just simply left with some sort of vague or general question to be answered and the answer is overburdened by the lack of focus, if you like, in the question. I am currently, and with the assistance of the research section of the Commission's Registry, looking at the question in order to work out what the path of analysis actually is and that should be completed in the next few days.

PN53

What I suggest is that perhaps if you simply defer any attempt to answer the question until that process that I have just mentioned is complete. I was hoping it could be completed by today, but I am sure you would appreciate on reading the terms of the agreement in light of the comments that I have made about the number of instruments which interact with another, that it wasn't able to be completed by today. It may be that when the report is produced that of itself will satisfy me that the agreement passes a no disadvantage test.

PN54

I just want to foreshadow that there may be some questions arise out of that. So rather than you attempting to answer the question very, very generally and perhaps overburdening the process, I suggest that the parties simply defer until next week addressing the issue and I will arrange for some time next week any questions that arise from the research of the Commission to be addressed to the parties if, indeed, there are any, or I will advise you that the agreement has - I am satisfied the agreement does pass the no disadvantage test so we can move on from there.

PN55

MR GOSTENCNIK: For our part we are content with that. Commissioner, the final element before drawing your attention to some of the provisions which might be of concern, is to simply point out that the agreement is drafted in such a way as to not commence until the date certified and that it has a nominal expiry date of 30 June 2006 and therefore is not a period exceeding three years. Commissioner, if I can just take you to some of the provisions which we think might explain. Clause 6 of the agreement sets out the relationship between this agreement and other certified agreements and awards.

PN56

What is in intended or what we hope we have achieved is to try and get into one document, at least in an initial sense, all of the terms and conditions of employment which govern these employees. The background to the employment of these employees or their predecessors is that there were awards of the Commission, there were also policies of the PTC, and they were supplemented by various certified agreements. And we have tried to put them in the first instance in some form of orderly fashion with a view to seeking to further consolidate those in the next round of negotiations, so that the first point we make is that the agreement itself contains all of the terms and conditions of employment.

PN57

And it is intended that this agreement would replace each other agreement which is listed in appendix 1 so that it is clear that the terms and conditions which regulate the employment of these employees is dealt with by this agreement. We incorporate the terms of the certified agreements which are listed in appendix 1 as terms of this agreement and we set out in clause 6 the relationships that awards will have with this agreement, the relationship that incorporated terms will have with principal terms in this agreement and the relationship that incorporated terms themselves will have with the relevant award, most of which can be said to be no more than a reflection of the regime in the Workplace Relations Act in any event.

PN58

But because we are incorporating the terms of agreements and therefore replacing those agreements we wanted to keep that regime in balance because previous agreements have simply referred to the other agreements and had a general inconsistency provision. In clause 7 we deal with the incorporated policies and these are Public Transport Corporation personnel policies which are still applied by my client and the terms and conditions of employment contained therein are still enjoyed by the employees and we wanted to give life to them or some legal effect other than a contractual effect by incorporating them into this agreement and it has been therefore necessary to also set about a regime of dealing with inconsistencies between incorporated policies and incorporated terms.

PN59

What we hope to do long term is to remove inconsistency altogether so that the document is a free flowing document which sets out all of the terms and conditions of employment in a non-inconsistent manner so that the parties don't have to work out whether or not provisions are inconsistent. Clause 9, Commissioner, deals with the M-Tram employee situation.

PN60

THE COMMISSIONER: I must say I am not quite sure I understand clause 9.2.

PN61

MR GOSTENCNIK: Sorry, clause 9.2? What clause 9.2 does is it deems the employment of an M-Tram employee to have commenced with Yarra on the same date as that employee commenced with M-Tram or its predecessor.

PN62

THE COMMISSIONER: It doesn't actually say that though, does it?

PN63

MR GOSTENCNIK: Well, sorry, I will withdraw that. It deems for the purposes of leave entitlements that those entitlements commenced accruing from the same date as those leave entitlements would have accrued upon commencement of their employment with M-Tram or its predecessor. So it is not employment as such because nothing turns on employment per se, it is the leave entitlements that we are concerned about and leave entitlements - - -

PN64

THE COMMISSIONER: Do you see looking at it why I ask the question? If you actually put out of your mind the knowledge that you may have of the way in which the clause was constructed and the intention and objectives - - -

PN65

MR GOSTENCNIK: Because of the absence of the words "or predecessor" where M-Tram first appears?

PN66

THE COMMISSIONER: Well, I thought when I read the first sentence I wasn't quite sure what day it was being referred to.

PN67

MR GOSTENCNIK: I appreciate your point. The words are unnecessary for this reason, that when M-Tram commenced to operate the franchise part of the arrangement was that M-Tram would recognise past service at the PTC so that their leave entitlements were calculated by reference to when people commenced with M-Tram's predecessor and so the words become unnecessary because the - - -

PN68

THE COMMISSIONER: What I thought, and it may be simply the lack of familiarity with the factual circumstances that caused this to come into existence, was that there might be some doubt about whether or not the date being referred to was the date of transfer, that is to say, that the operation of clause 9.2 was really saying that from the date of transfer the leave accruals will operate as if the employee had remained in the employment of M-Tram.

PN69

[3.00pm]

PN70

MR GOSTENCNIK: The leave entitlement - perhaps I can put it in these terms. The leave entitlements of M-Tram employees are presently calculated by reference to the date on which they either started at M-Tram if they were not PTC employees. And if they were PTC employees then those leave entitlements would be calculated by reference to the date they started employment with the PTC and it is that date that is the relevant date, not the date of employment.

PN71

THE COMMISSIONER: Yes. Well, I know that that has been clarified by this discussion and I think it is just helpful for the record to perhaps state that because neither the fact that the accrual is relevant to PTC commencement date or M-Tram commencement date is explicitly stated in the clause and it may leave room for some interpretive confusion. But, in any event, the intention of the agreement is that leave accruals, by virtue of this term, will still be calculated by reference to either the commencement date of the PTC or with Yarra Trams - I am sorry, with M-Trams for an employee transferring to Yarra Trams in the event a transfer occurs. All right.

PN72

MR GOSTENCNIK: Precisely. Subject to the deduction of leave entitlements already taken. And we set out in the definition - it is not an exhaustive definition but we think it is pretty exhaustive - all of the leave entitlements which would accrue or accumulate, some of which are standard entitlements but there are a few, what might be regarded as non-standard entitlements such as programmed leisure days and recreational sick leave. And don't ask me to explain what a recreational sick leave day is, Commissioner.

PN73

THE COMMISSIONER: Mm.

PN74

MR GOSTENCNIK: But I am instructed that that is an entitlement which accrues as one that we will recognise subject to the operation of clause 9.3. Clause 9.3 operates so that it is intended to be a non-double dipping provision. So that if M-Tram is not able to negotiate with the union effective provisions - or the employees effective provisions for the transfer of those entitlements, then, as a matter of law, those entitlements will become due and payable, or at least some of them, on the termination of employment. So, for example, long service leave where somebody has an accrued entitlement to long service leave, say, after 10 years of service, then the termination of employment will generally require the payment out of that entitlement. In order to overcome that the industrial instrument will need to provide for agreement that that entitlement not be paid out in given circumstances and be transferred to an acquirer. It is not something that we can - - -

PN75

THE COMMISSIONER: So you are dealing with that bank case, effectively, here, are you?

PN76

MR GOSTENCNIK: I am sorry, sir?

PN77

THE COMMISSIONER: You are dealing with that banking case here?

PN78

MR GOSTENCNIK: Yes.

PN79

THE COMMISSIONER: The Commonwealth Bank.

PN80

MR GOSTENCNIK: Yes. So that is - - -

PN81

THE COMMISSIONER: And the intention is limited exclusively to ensuring that there is not, both, a pay-out of accrued entitlement and a crediting of one - - -

PN82

MR GOSTENCNIK: Yes.

PN83

THE COMMISSIONER: - - - by Yarra Trams?

PN84

MR GOSTENCNIK: Yes, that is right.

PN85

THE COMMISSIONER: Where an employee transfers the entitlement then it will be fully recognised?

PN86

MR GOSTENCNIK: That is right.

PN87

THE COMMISSIONER: Where it is paid out, that will effectively dispose of any liability for leave in relation to the service with M-Tram and prior to that?

PN88

MR GOSTENCNIK: Yes, that is right. The provisions in clause 10 deal with a similar circumstance but they don't deal with M-Tram employees, they deal with what we describe as maintenance service providers and just to explain that, Commissioner. Maintenance service providers currently contract with M-Tram for the provision of maintenance services. And it may be that in the course of these discussions that they may cease providing services to - well, they will cease providing services to M-Tram because they will no longer be operating. They may or may not provide services to us. If they don't, under the arrangements, there will be some transfer of employees and this is intended to operate in that way. To the extent that those employees will be covered by this agreement and certainly not all of them will be, a number of them will be subject to separate regulation.

PN89

The remainder of the agreement, in our submission, contains terms and conditions of employment as well as issues that - in the system improvement plans, productivity improvements and so forth that have been agreed between the union and my client. And there is, in our submission, nothing remarkable about those, those specific to the business of my client and they are objectives that my client wishes to achieve and the union has agreed to assist it in achieving over the life of this agreement. Those are all of the submissions that I have. Given your comments earlier about satisfaction as to the no disadvantage test we will await the Commission's document and answer it as it becomes necessary.

PN90

THE COMMISSIONER: I will just ask you a question about the adequate alternative employment offer.

PN91

MR GOSTENCNIK: Yes.

PN92

THE COMMISSIONER: It is not an acceptable alternative employment offer it is an adequate one. And I assume that the intention of the parties is that what is adequate is defined by the terms of the agreement, namely, 11.2.2 thereafter.

PN93

MR GOSTENCNIK: Sorry, 11 point?

PN94

THE COMMISSIONER: 2.2 thereafter.

PN95

MR GOSTENCNIK: Yes. I am sorry, Commissioner, I missed - - -

PN96

THE COMMISSIONER: So the locality of the alternative employment, for instance, is not a consideration? Or does that perhaps fall under what might be called a comparable position? I wouldn't have thought so. And what are comparable wages terms and conditions of employment? Are these matters susceptible to the operation of the dispute settlement procedure?

PN97

MR GOSTENCNIK: Sir, the operation of clause 11.2.2, I guess, has got to be viewed in its context. The reality is that a successor assigning or transmitting a part of the business of Yarra Trams - that first bit - will, not likely, be conducting businesses in places other than where Yarra Trams currently conducts its business. It is a tram business, it is a tram network, it is fixed in a particular area, so the location of that employment is fixed. I suppose your concern is with the "another prospective employer" bit?

PN98

THE COMMISSIONER: With a number of things, really, because I am assuming - I may be wrong but I am assuming that the relevant award provisions, and perhaps other agreement provisions, may deal with this subject differently.

PN99

MR GOSTENCNIK: Well, the award provision doesn't deal with adequate alternative employment. There is provision in earlier agreements which deal with redundancy - - -

PN100

THE COMMISSIONER: Do they refer to adequate or acceptable alternative employment?

PN101

MR GOSTENCNIK: Well, they don't deal with it at all.

PN102

THE COMMISSIONER: Don't deal with it at all?

PN103

MR GOSTENCNIK: No. This agreement deals with that question together with redundancy or severance.

PN104

THE COMMISSIONER: So that under the agreements and the awards any redundancy leads to the payment of severance payments.

PN105

MR GOSTENCNIK: Well, under the agreements, yes.

PN106

THE COMMISSIONER: And what of the award?

PN107

MR GOSTENCNIK: As far as I am aware, they don't deal with the question of redundancy.

PN108

THE COMMISSIONER: At all?

PN109

MR GOSTENCNIK: In the sense of providing severance payments.

PN110

THE COMMISSIONER: They don't prescribe severance payments?

PN111

MR GOSTENCNIK: No. Severance payments are set out in the past agreements. They were - - -

PN112

THE COMMISSIONER: The awards have never had TCR in them?

PN113

MR GOSTENCNIK: I can't say - but my instructions are, that is right, because - - -

PN114

THE COMMISSIONER: Yes. Well, that is a bit of a variation on the norm but nevertheless if that is the situation, it is the situation.

PN115

MR GOSTENCNIK: Yes. Because this is a circumstance where the question of severance has always been dealt with by way of government policy and when PTC was in government hands there was a government redundancy package, both a targeted and a voluntary one. That was then picked up in subsequent agreements and that - - -

PN116

THE COMMISSIONER: So it is the agreements that are relevant in the sense that - - -

PN117

MR GOSTENCNIK: Yes.

PN118

THE COMMISSIONER: - - - they are subsumed by this?

PN119

MR GOSTENCNIK: Yes, but there is a specific provision at appendix 3 which deals with targeted separation and the entitlements of employees.

PN120

THE COMMISSIONER: Yes. That doesn't deal with the subject of what is now described in this agreement as "adequate alternative employment".

PN121

MR GOSTENCNIK: No, no. No, that - - -

PN122

THE COMMISSIONER: And has adequate alternative employment been previously dealt with?

PN123

MR GOSTENCNIK: No.

PN124

THE COMMISSIONER: Not at all?

PN125

MR GOSTENCNIK: No.

PN126

THE COMMISSIONER: So would it be true to say that for the first occasion in relation to the regulation of redundancy in the industry the possibility that a redundancy payment will not be available in the event of redundancy is provided for by this agreement?

PN127

MR GOSTENCNIK: In the event that the employee refused adequate alternative - yes.

PN128

THE COMMISSIONER: In the event that there was something described by the agreement as adequate alternative employment offered or found.

PN129

MR GOSTENCNIK: Yes.

PN130

THE COMMISSIONER: So that, really, what I am looking at there is the question of whether or not these particular terms - well, they can't cause any disadvantage under the Act because there is no award provision - there is no award entitlement.

PN131

MR GOSTENCNIK: The provision is squarely designed to overcome - - -

PN132

THE COMMISSIONER: I suppose the subsidiary question is if you look at the terms of the provision there may be disputes about comparability. I assume that they are susceptible to at least conciliation under the agreement and potentially arbitration by agreement, is that right?

PN133

MR GOSTENCNIK: That is right.

PN134

THE COMMISSIONER: I mean, it would be rather naive not to expect there to be some organisational review if there was an acquisition, wouldn't it? I mean, it is unusual for businesses or operations conducted in the same or similar fields to be integrated without there being a necessity for a review of the operation of the integrated or acquired business.

PN135

MR GOSTENCNIK: The reason for that provision, sir, is that the question of the employment of M-Tram employees - perhaps I will withdraw that. Under the present franchise arrangements there are a group of persons who are described in those arrangements as franchise employees and they, as the franchise arrangements presently stand, acquire certain rights, vis-a-vis, ongoing employment in the event of a change in franchise and so forth. And there are currently discussions with my client and the department and indeed M-Tram about those employment issues. So that it may be necessary to conduct some form of review after acquisition. It may not, but these issues might be clarified in negotiations but that is the purpose of that provision.

PN136

THE COMMISSIONER: Now, as I understand - - -

PN137

MR GOSTENCNIK: It would be, though, naive to assume that there wouldn't be a review because there will be a necessity to review all sorts of things if we are trying to run a merged business.

PN138

THE COMMISSIONER: Well, yes, one would normally expect if there were two public transport tramway service providers operating the necessary overheads that most organisational analysis would be able to identify some duplication. Now, I just ask you a general question that goes to the no disadvantage test. Now, the agreement basically tends to take the place of just about everything, does it not?

PN139

MR GOSTENCNIK: Yes. Well, we hope that everything has been put into the agreement.

PN140

THE COMMISSIONER: Yes, that is right. In other words, it is a single code of employment.

PN141

MR GOSTENCNIK: Yes. The awards haven't been because the awards will be varied from time to time and those will continue to operate subject to this agreement and it does no more than - - -

PN142

THE COMMISSIONER: So the awards continue in operation in conjunction with the agreement?

PN143

MR GOSTENCNIK: Yes, but there is inconsistency provisions, yes.

PN144

THE COMMISSIONER: Yes, but to the extent of any inconsistency the agreement will prevail?

PN145

MR GOSTENCNIK: That is right.

PN146

THE COMMISSIONER: Just one thing which would, I think, assist in expediting my conclusion in relation to the no disadvantage test is if the parties might identify all of the award provisions which will continue to operate in conjunction with the agreement. One of the most elementary things that I needed to do is to ensure what, if any, terms and conditions of employment are not catered for because of any inconsistency. So if the parties could actually provide me with a copy of the relevant award coverage and just indicate which clauses of the award will continue to operate, then it will enable me to eliminate consideration of whether or not those terms are somehow or other modified by the terms of the agreement and will reduce the issues that I have to address.

PN147

MR GOSTENCNIK: Yes, we will do that, sir.

PN148

THE COMMISSIONER: Well, look, thanks for that. I might just hear from Mr Thomas.

PN149

MR THOMAS: Thank you, Commissioner. I will be relatively brief. Many of your issues have already been raised. Hope at least, with the exception of the no disadvantage test, satisfactorily resolve - - -

PN150

THE COMMISSIONER: You have offered to provide me with the information concerning the outcome of - - -

PN151

MR THOMAS: Yes.

PN152

THE COMMISSIONER: - - - the consideration of the agreement by the employees. I mean, was this passed by a majority of one or a majority of 576 or?

PN153

MR THOMAS: Commissioner, the final outcome of the ballot was 390 in favour and 58 against. We do have sheets here of the separate voting at each of the locations. I don't know if it is necessary to go into that but you can see that - - -

PN154

THE COMMISSIONER: No. If you tell me that I have no reason to doubt that they are the facts and they have been recorded on the transcript.

PN155

MR THOMAS: Yes. So it was overwhelmingly in favour. Commissioner, in accordance with the requirements of the Act the RTBU has filed a statutory declaration signed by one of its officers. That statutory declaration deposes to the requirements that are necessary to be considered by the Commission. I will take that as read. And, Commissioner, subject to the two points you have made on the no disadvantage test and how the matter will finally resolve itself we would seek that you certify the agreement as before you. If the Commission pleases.

PN156

THE COMMISSIONER: Thank you. I should indicate to the parties that subject only to my final conclusion that the agreement passes the no disadvantage test I am satisfied that the agreement has been made in accordance with the requirements of the legislation and that it contains the requisite provisions as to its commencement and duration and provides for a dispute settlement procedure. Under these circumstances, unless I reach the conclusion that the agreement does not pass the no disadvantage test, the Commission will be obliged to issue an order of certification.

PN157

As I indicated earlier, having regard to the particular industrial circumstances, I have no reason to doubt that on appropriate consideration and analysis the agreement will pass the no disadvantage test. That is yet to be completed. I hope to complete that analysis by the end of this week or early next week and I will advise the parties accordingly. If any issues arise in respect of which further information is required my office will contact the parties for that purpose. In the meantime, however, I would be advantaged by advice as to what award terms continue in operation and modified by the agreement. In the event that I reach satisfaction in relation to the no disadvantage test I would intend to issue an order of certification without further requirement of attendance by the parties. Thank you.

ADJOURNED INDEFINITELY [3.20pm]