AG2004/5306, Transcript of Proceedings [2004] AIRCTrans 3046 (4 August 2004)

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TRANSCRIPT OF PROCEEDINGS

O/N 2015
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

DEPUTY PRESIDENT HAMPTON

AG2004/5306

APPLICATION FOR CERTIFICATION OF
AGREEMENT

Application under section 170LJ of the Act
by the University of South Australia for
certification of the University of South
Australia Academic and General Staff Enterprise
Agreement 2004

ADELAIDE

3.14 PM, MONDAY, 26 JULY 2004

PN1

MR M. GLADIGAU: I appear with J. VARTULI for the University of South Australia.

PN2

MS A. BUCHECKER: I appear with R. ISEMAN for the NTU.

PN3

MS R. BUCKLER: I appear for the Liquor, Hospitality and Miscellaneous Union.

PN4

MR I. PEAK: I appear for the CPSU, SPCF, South Australian Branch. With me is P. FRASER.

PN5

THE DEPUTY PRESIDENT: Mr Gladigau?

PN6

MR GLADIGAU: Thank you sir. This is an application by the University of South Australia to certify proposed University of South Australia, Academic and General Staff Enterprise Agreement 2004. It is an application made pursuant to section 170LM(1) of the Work Place Relations Act with respect to the making of a certified agreement pursuant to section 170LJ. With respect to the University's submission I propose to outline the extensive consultative process undertaken by the university in order to reach the proposed agreement, identify the Board key features of the agreement and address the Commission with respect to the test required to be met under the Act in order to certify the agreement.

PN7

To help guide the Commission and the parties through the detail and our submission, I am wanting to - seek to tender a book of documents which I will allude to during the course of my submission, and I think that will obviously serve all parties in terms of navigating their way through the various tests and processes that occupy the university. To start off with sir, the current University of South Australia Academic and General Staff Enterprise Agreement 2000 notionally expired on 30 June 2003. Clause 8 of that Agreement will provide that the parties commence discussions 3 months prior to the nominal expiry date in the Agreement.

PN8

The University commenced the process of consulting with staff in an email communication to all staff from the vice-chancellor on 25 February 2003. The email advised that the formal negotiation process would commence soon and sought feedback from staff in terms of what matters the university should take into account in preparing the negotiations. This process also included campus based consultation meetings with staff during late March and April 2003 and just in that respect sir, attachment A of the book refers to the email from the vice chancellor just setting out the process, or starting the process, more to the point and invites staff for their comments through a work based forum if they like to but also through the campus based consultation meetings which did occur.

PN9

The negotiations for the new agreement were conducted through the enterprise bargaining negotiating group. The membership of the group comprised a total of 16 people with one independent chairperson who was former State Government Minister, Mr Greg Crafter, three university management representatives - that was prior Vice Chancellor of Education, Arts and Social Sciences, the director of human resources and workplace relations representative. Also had five NTU representatives who was the NTU Union SA President, Mr Iseman and two NTU industrial officers and two staff representatives, one being from the academic staff and one being from general staff.

PN10

There were four CPSU representatives, those being two industrial officers and two staff representatives and finally two ALHMWU representatives, one being an industrial officer and one being a staff rep, and there was one executive officer to take minutes and set agendas, etcetera, so it was a comprehensive group covering all elements of the university and representing all the unions. The lead negotiators were Professor Michael Rohan of the university and Mr Robert Iseman, on behalf of the NTU and the CPSU and ALHMWU. The first meeting of the EB negotiating group commenced on 29 April 2004, so it was before the process started the negotiation but on 19 May 2003.

PN11

On 19 May 2003, the vice chancellor sent an email to all staff advising of the feedback she received arising out of the campus-based consultations held in late March and early April. The vice chancellor welcomed continued feedback from staff as the university proceeded through the enterprise bargaining process and advised that the university had established a dedicated enterprise bargaining process or website on the university overall website itself to keep staff informed of developments and this web page was partly protected so only university staff could access it.

PN12

In attachment B, that sets out the email sent by the vice chancellor on 19 May, and referring to the web page as well, on page number 2. Just on the EB web page, this became the primary means for the university to keep staff informed of the progress of negotiations and through that we paged staff with access, a copy of the current Academic and General Staff Agreement, copies of agendas and minutes of each meeting of the EB negotiating group, copies of each email issued to all staff by the vice chancellor, or joint emails issued by Professor Rohan and Mr Iseman and when a new agreement was finalised, a copy of the agreement and associated explanatory statements.

PN13

During the period from 19 May 2003 to late October '03 the EB negotiating group met on eleven occasions and several working parties were established to discuss the detail of key negotiating agenda items such as work clothes, disputes resolution, discipline and casual employment. In late October 2003 the parties agreed to create what we term an intensive drafting group. This was substantially a small sized group than the EB negotiating group and its main objective was to fast track development of clauses and the overall enterprise agreement and bring that back to the EB negotiating group.

PN14

Considerable progress in finalising negotiations was made between late October and early December 2003 and a joint email communication was then issued to all staff by Professor Rohan and Mr Iseman on 10 December 2003 advising the progress of negotiations and in that respect, sir, we refer to attachment C which outlines the joint communication and in that respect the progress and some key elements of a new agreement that the parties had in principle committed to. Down the bottom of the first page it says that the intention of the parties to take a break and do some fine tuning of Christmas-New Year and modelling the clauses to convene back in early February 2004. Following that it was envisaged that the agreement would be put to staff for consultation, as required in the Workplace Relations Act.

PN15

Negotiations between the parties occurred in February 2004 and on 17 March '04 a joint email communication was issued to all staff by Professor Rohan and Mr Iseman advising that an in principle agreement had been reached between the parties and also to talk about the process ahead and attachment D refers to that email. Just on that, it did tell staff that an in principle agreement was reached on Monday 15 March 2004 and the next step in the process included ratification of the proposed agreement by the university senior management group, union members and the single bargaining unit.

PN16

Given we had not finalised the final detail it was inappropriate to put the agreement to staff at that point in time but we could confirm, at that point that we had reached agreement on a 15 per cent wage increase and it sets out the proposed dates at that point. Also talked about enhanced paid maternity leave provisions and details of that there as well. As the parties moved forward, it advised staff that we would engage in a consultative process and set up a consultative forum to talk to staff about the agreement.

PN17

On 13 May 2004, the EB negotiating group held its final meeting and the group was updated on the stages of the negotiations, the proposed time lines to consult with staff and the ballot process. Then on 21 May, the vice chancellor issued an email to all staff commending the final draft of the proposed new agreement for consultation and in that respect, attachment E sets out the process which the university was going to go through to consult with staff, in particular the salary increase.

PN18

As well talking about the explanatory statement the university had prepared to accompany the agreement and advise staff on the final details and provide a link to the university's web page. It also talked about the dates and times for campus forums and they commenced on Tuesday 25 May at the Magill campus and concluded on Thursday, 3 June at the City West campus. The vice chancellor encouraged all staff to read the draft agreement and accompanying explanatory statements and attend the campus forums so they could make an informed decision on what the agreement was about and whether they supported it or not. The vice chancellor also advised it was anticipated that the ballot would commence on Friday 4 June and close on Friday 18 June, at midday and that was to be further confirmed through subsequence correspondence.

PN19

Just referring you, sir, to attachment F which is a detail of the explanatory statements which were provided to the staff on the university's website. I will not go through them save to say it was a comprehensive set of statements on a number of key clauses in the proposed agreement that we believed was appropriate to clarify with staff and also staff also had access to the copy of the proposed agreement on that same web page as well, there was a PDF file which they could download.

PN20

The ballot commenced on 4 June, 2 weeks after the issue of the vice chancellor's email of 21 May and close of midday on 18 June. All staff were reminded about the ballot process in an email from the director of human resources on 4 June. The EB ballot process adopted by the union was to follow the same process adopted for elections to the university council. It was quite a rigid ballot process, sir, and in that respect the staff were sent ballots to their home address. It was a secret ballot and it followed a very similar path to what is adopted, you would be familiar, sir, with what the Government adopts with the State Electoral Commission, that type of process.

PN21

Just on that, attachment G sets out the email to all staff from the director of human resources which was issued on 4 June. In particular, sir, the email states that the ballot is anonymous and also the proposed agreement remains available to staff for consideration on the UniSA website. The counting of the ballot concluded on 21 June and the agreement was overwhelmingly accepted by 97 per cent of staff who voted and the resulted was announced to all staff by email from the vice chancellor that day.

PN22

Attachment H sets out the email that went to all staff from the vice chancellor. Just in terms of the key features of that email, the vice chancellor did advise staff that 97 per cent of staff who voted accepted the agreement and that the university would now make an application to the Australian Industrial Relations Commission to have the agreement certified. Once the agreement was certified, it would come into effect.

PN23

One more thing, sir, to confirm the validity of the result, the returning officer, Ms Mary Taylor, compiled a statement advising of the process undertaken and the result of the ballot and that is contained at attachment I of that statement and the key features of that is that the ballot opened on 4 June and concluded on Friday, 18 June and the counting of the ballots concluded at 11 am on Monday, 21 June with the result being total ballot received 1472, ballots declared invalid 21, for was 1402 and against was 49. That concludes the consultative process undertaken by the university with the staff.

PN24

THE DEPUTY PRESIDENT: In terms of the book of documents, I take it there is no objection to the admission of this material? I will admit the book of documents.

EXHIBIT #A1 BOOK OF DOCUMENTS TENDERED BY MR GLADIGAU

PN25

MR GLADIGAU: Just in terms of the key features of the enterprise agreement, I do not propose to take the Commission through 145 pages but just glance over it.

PN26

THE DEPUTY PRESIDENT: You can certain take it that I have read it. It took me a while but I have read it.

PN27

MR GLADIGAU: Can I start with clause 3: Agreements and awards. The agreement is comprehensive and closed. It prevails over the awards listed in clause 3.1. Clause 3.3 states the agreement replaces all previous agreements, namely 2000 Enterprise Academic and General Staff Enterprise Agreement, only for staff covered by the agreement, which I will allude to in a minute, with a category of staff and document services for all parties to the agreement. It is binding upon all academic and general staff except document services staff and security ground staff who have their own enterprise agreement, the Vice Chancellor and any other positions as agreed from time to time with the relevant unions. It is also binding upon the NTU, the CPSU and the ALHMWU.

PN28

Just in respect of documents services staff, it is proposed that they remain in the current Academic and General Staff 2000 Agreement until such time as a new agreement is concluded for this group of staff and as part of this process, the university will administratively pass on the first 3 per cent wage increase in the new 2004 enterprise agreement to document services staff. Clause 5 - - -

PN29

THE DEPUTY PRESIDENT: Are there particular reasons why they have been separated?

PN30

MR GLADIGAU: Yes, sir, there are mitigating reasons and they relate to - I suppose over time the document services area have become more commercially focussed. They are now competing with printing employers in the private sector and a larger proportion of their business is now being sourced from the private sector. So in that respect, we believe that it was appropriate for them to look at an agreement that certainly makes them more competitive with that sector.

PN31

But also recognising that we needed to engage in a process with the unions and staff to try to find a way which we can deal with an agreement that they can agree to. And in that respect the university is committed to negotiate a 170LJ agreement with the unions and all of the unions, namely, the NTU, the CPSU and the Misco's will be present in the negotiations with the agreement with the staff.

PN32

THE DEPUTY PRESIDENT: Thank you.

PN33

MR GLADIGAU: Clause 5, Operation and Certification. Clause 5.2 of the agreement states that it comes into operation from certification and will expire on 30 June, 2006. Clause 8, 8.2 in particular states that the negotiations for the next agreement will commence no later than the normal expiry date 30 June, 2006 and the parties will commence negotiations at an appropriate time prior to that date. Clause 22, Managing Change.

PN34

The managing change clause in the current 2000 agreement has been redrafted in the new agreement to provide for clearer processes and time frames for managers and staff to follow through the difficult process of managing change within the university. Clause 30, General Staff Classification. The new agreement provides for several changes to the job evaluation and general staff classifications including a review of the general staff classification tool used by the university for the reclassification and classification of evaluations.

PN35

A working party will be established by the university in consultation with the unions to commence the review process within three months following certification of the agreement. The review will take place over the following 12 months and the interested unions are to agree to a job evaluation talk at the end of that process. The other change to that clause is the trialling of a new classification linking system to apply to positions classified at level 6 and above.

PN36

The linking system will be trialled in designated areas of the university and will commence within 6 months of certification and whilst the areas area yet to be determined, they will be done in consultation with the unions. The third change, sir, is the removal of what we term the over-barrier salary increment levels for general staff at classification levels 3, 4 and 5 and those salary levels will be included as a new increment 6 in those respective classification levels of 3, 4 and 5 and will become part of normal incremental advancement for general staff within the university.

PN37

Clause 32, Fixed Term Employment. The new agreement introduces new programs, discontinued programs and academic convertible contracts. There are three new circumstances where the university may offer fixed term contracts with all of the other suite of circumstances carrying over from the previous 2000 agreement. They will be in the 2004 agreement. Clause 34, Casual General Staff Employment. The new agreement provides for a casual general staff member to apply to the university to have their employment converted to a non-casual appointment and the new clause incorporates a number of provisions consistent with the recently finalised Higher Education Casuals' case which I am not certain, sir, whether an order has been made in that process but certainly it is close to that but it is consistent with it.

PN38

THE DEPUTY PRESIDENT: I understand.

PN39

MR GLADIGAU: Clause 39, Salary Increase. The agreement provides for an overall 15 per cent salary increase with 3 per cent to apply from 30 April, 2004, 2 per cent from 1 October, 2004, 5 per cent from 30 June, 2005 and 5 per cent from 30 June, 2006. The increase in real terms equates to a 15.83 per cent increase compounded. Clauses 43 and 44 - - -

PN40

THE DEPUTY PRESIDENT: Just before we pass the point, I note the exclusion for pilots. What is the circumstance there?

PN41

MR GLADIGAU: Exclusion? Well, pilots - we did have one pilot. He is no longer employed. Yes, sorry, I will clarify that. It is to do with the rates of pay in the award more precisely, sir, in terms of where we did have pilots. The rates of pay that the increase did apply in that respect would be drawn from that relevant award and not the enterprise agreement.

PN42

THE DEPUTY PRESIDENT: Is there a particular reason for that?

PN43

MR GLADIGAU: Well, I suppose the thing is - the detail of it is, this is an academic and general staff enterprise agreement and covering those occupations only and we saw that national pilots sat outside of that process, outside of that agreement.

PN44

THE DEPUTY PRESIDENT: But they have been included for the balance of the terms of the agreement. It is just that the salaries are drawn from their award.

PN45

MR GLADIGAU: That is correct.

PN46

THE DEPUTY PRESIDENT: All right.

PN47

MR GLADIGAU: Just on clauses 43 and 44, with respect to casual general and academic staff salary rates, the current casual loading of 20 per cent will increase to 23 per cent from the date of certification and that is consistent with the recently finalised Higher Education Casuals case. Clause 53, Hours of Work for General Staff. The current span of hours of 8 am to 6 pm will increase to 7 am to 7 pm, Monday to Friday and customary hours for general staff will continue to be 8.30 am to 5.15.

PN48

Where a staff member requests to adjust the customary hours, within the span of hours or where there is an organisational need to adjust the hours, well then the clause sets out a process in which to achieve that through consultation. Clause 54, Overtime. The new agreement enhances overtime allowances for general staff with overtime applying where a staff member is required to work in excess of 7.5 hours per day. Currently that is 8 hours per day and also overtime arrangements for part-time staff have been enhanced and is payable where the hours are worked outside of the established or agreed ordinary hours rather than the previous arrangement where they state that overtime is only paid after 7.5 hours per day.

PN49

Clause 59, Academic Work-Load. A new method of working hours for academics has been established in the enterprise agreement and the clause is quite comprehensive and I don't seek to take the Commission through that other than to say that it determines the method in which the hours will be determined and also the processes to deal with academic work-load issues in terms of issues arising out of that. Clause 68, Long Service Leave. The new agreement will provide greater flexibility for staff members to cash out up to 100 per cent of their long service leave entitlement whereas the current agreement provides for cash out of 50 per cent.

PN50

Families Leave. The university has enhanced a number of entitlements in the suite of family leave clauses. They are detailed in clauses 70 to 72 with the main enhancement being the increase in the paid maternity and adoption leave entitlement from 12 weeks at 100 per cent pay up to 16 weeks at 100 per cent, plus 12 weeks at 50 per cent pay. That is an effective increase of 10 weeks. Sir, I don't propose to go through the remainder of the family leave clauses unless you wish me to clarify anything on that.

PN51

THE DEPUTY PRESIDENT: No, I believe I understand the intent of the pertinence.

PN52

MR GLADIGAU: Just moving on to clause 78, Grievance and Dispute Resolution Procedures. The new agreement consolidates a number of existing disputes procedures into a single procedure for the resolution of personal grievances and/or disputes arising from the enterprise agreement. It sets out four stages in order to attempt to resolve the disputes with an emphasis on finding solutions at the local level and the use of mediation where appropriate. The clause retains the process of personal grievance and disputes going through to an internal disputes committee prior to the matter proceeding through to the Australian Industrial Relations Commission.

PN53

Clause 86, Redeployment. This is a new clause and builds on current redeployment practices and procedures. Just in terms of the key features of the clause, they include redeployment being extended to include academic staff. Previously redeployment only applied to general staff within the university. The period of redeployment is for a maximum of 6 months from the date the staff member is informed in writing that their position that they occupy is declared redundant or the period of a funded of a fixed term contract when that contract is greater than 6 months but no longer than 2 years. They are the main features of that clause.

PN54

Clause 87, Voluntary Redundancy Benefits for General Staff. Benefits for general staff have been significantly increased particularly for staff that have had less than 13 years of staff with the university and just on that, the increased benefits range from 22 weeks for staff with less than 1 year of service up to 5 weeks for staff with 10 years of service. So on that, sir, that is the key features of the agreement as they stand. Unless you have got any questions on the agreement itself, I propose to then move on to the tests.

PN55

THE DEPUTY PRESIDENT: Just a point of clarification. The agreement contains I think, a new provisions clause 33 Fixed Term Employment Conditions which you referred to including at 33.6 a severance approach and 33.7 has severance pay. I am just wondering about the relationship between that provision, which of course is generally aligned with the Commission's termination change, former termination change redundancy provisions.

PN56

I do note the new section 13 as it is called: Termination of Employment, which I appreciate involves a particular circumstance. It also includes voluntary redundancy benefits but more particularly, compulsory redundancy benefits, both general and academic staff, and I just wondered about the relationship between the earlier provision and the severance redundancy benefits that are set out in section 13.

PN57

MR GLADIGAU: Certainly the severance pay entitlements in 33.7 are drawn from an award, the Higher Education Contract of Employment Award and that is how they have been based.

PN58

THE DEPUTY PRESIDENT: Yes.

PN59

MR GLADIGAU: And that is how the university has - it basically hasn't maintained a relationship between voluntary redundancy at all and that clause, namely clause 33.7. Certainly it is the intention of the university was to enhance the voluntary redundancy entitlements for continuing staff members but certainly not for the other group and they would stand as they are.

PN60

THE DEPUTY PRESIDENT: So that means that the 33.7 would only apply to fixed term staff members?

PN61

MR GLADIGAU: That is correct. Just moving on to the test to certify the agreement under the Workplace Relations Act, section 70 - sorry, I'll rephrase that - section 170LM(1) which applies to application for certification. The application was filed in the registry by the university on 12 July, 2004 and seeks certification of the proposed agreement under section 170LJ and the application states that it is made under division 2, Part VIB of the Act and therefore we submit it complies with that part of the Act.

PN62

Section 170LM(2) which is the time limit for lodging the application. The statement of the returning officer is evidenced in attachment I, advises the counting of the ballot concluded at 11 am on Monday, 21 June this year. I submit that the 21 June, 2004 is the date that the agreement was approved by a valid majority of the staff pursuance to section 170LJ of the Act. The agreement was filed in the registry on 12 July, 21 days after the agreement was approved by a valid majority of the staff.

PN63

So I therefore submit that the application conforms with the requirements of section 170LM(2). Section 170LT(2) which is the no disadvantage test. Section 7.4 of the Vice Chancellor's statutory declaration identifies the span of hours in clause 53.1.1 and toil, time worked in lieu of overtime, in clause 54.3.1 of the proposed agreement has conditions that are a reduction in terms and conditions when compared to the relevant underlying awards.

PN64

The university has negotiated an agreement that significantly improves conditions for staff when compared to the relevant underlying awards, namely, payment for overtime after 7.5 hours, Monday to Friday, which is currently 8; a significantly improved redundancy benefits for general staff; and a 15 per cent wage increase, to name a few. We therefore submit that the proposed agreement does not contravene section 170XA(2) of the Act in terms of reduction of overall conditions of employment and passes the no disadvantage test pursuant to 170XA(1) and 170LT(2).

PN65

Section 170LT(5), which is an approval by a valid majority of the staff. Clause 6.3 of the vice chancellor's statutory declaration states that 3267 staff were covered by the proposed agreement as at 30 April 2004. Each of those staff received a ballot sent to their home address. Clause 6.1 of the vice chancellor's stat dec states the total of 1472 ballots were received with 1402 voting for and 49 voting against with 21 votes declared as invalid. This is also confirmed by the statement returning officer. We therefore submit that the number of staff voting for the agreement constitutes a valid majority for the purpose of 170LE(d) ..... (2) and meets the tests required of section 170LT(5) of the Act.

PN66

Section 170LT(7), which goes to an explanation of the terms of the agreement. Section 6.4, 6.5, 6.6 and 6.7 of the vice chancellor's statutory declaration advises of the steps taken by the University to explain the terms and conditions of the proposed agreement to the staff. This is further evident by the email and correspondence to staff, the explanatory statements provided to staff and the face-to-face consultative forums conducted by the University as detailed in attachment E, F and G of exhibit A. The University submits that these steps accord with the requirements of section 170LT of the Act.

PN67

Section 170LT(8), which is the dispute settlement procedures. Clause 78 sets out a process in which to deal with them ultimately through to the Commission if needed and, therefore, we submit that it accords with the requirements of that section. Section 170LT(10), which is the nominal expiry date. Clause 5.2 of the agreement states that:

PN68

It will come into force on certification and expire on 30 June 2006.

PN69

We submit that it accords with the requirements of 170LT(10). In conclusion the proposed new agreements represents a culmination of many hours of hard effort put in by a number of my colleagues from both sides of the table over an extended period of time and is one of the few agreements in the tertiary sector that have been finalised to this point. The agreement will ensure that the University remains competitive in the sector and is able to attract and retain a quality staff.

PN70

The agreement will also support the University in achieving its strategic objectives and remain an employer of choice within the community. So unless the Commission has any specific questions at this stage I commend the agreement for certification.

PN71

THE DEPUTY PRESIDENT: That is fine, thank you. Yes.

PN72

MS BUCHECKER: The NTEU thanks the University for its comprehensive presentation and has nothing further to add, thank you, sir.

PN73

THE DEPUTY PRESIDENT: Very well, thank you. Yes.

PN74

MS VARTULI: The ALHMWU has nothing further to add to the submissions but support the certification of the agreement today.

PN75

THE DEPUTY PRESIDENT: Yes.

PN76

MR PEAK: Sir, the CPSU agree to the certification of this agreement. The only one point we wanted to refer to, sir, which you raised was about the non-inclusion of Document Services in this agreement. The CPSU would have preferred that group to have been in the agreement but we accepted the points put to us by the University in terms of the need for this group to be economically feasible within the fact that it is a commercial enterprise, so obviously our preference would be for everybody to be included on the enterprise agreement, but this was accepted by us.

PN77

THE DEPUTY PRESIDENT: I understand, thank you. Anything further?

PN78

MR GLADIGAU: No, sir.

PN79

THE DEPUTY PRESIDENT: Look, I will deal with the application now. In so doing I have read the statutory declarations prior to the hearing. I've also read a comprehensive agreement and considered it in the context of the legislative requirements. I've also now heard a very comprehensive submission on behalf of the University and indirectly on behalf of all parties including the admission of exhibit A1. In that context I indicate that I am satisfied that the Commission can and should certify this agreement pursuant to the Act.

PN80

In reaching that conclusion I have considered the process leading to the application and, in particular, the process leading to the endorsement of the agreement by a valid majority of employees. In that context I then note the comprehensive process between the parties. I also note that the joint statement at some stage, I think which is in attachment C, indicated that the negotiations were conducted in good faith and most often in good humour.

PN81

Now, that is an excellent thing to be said, particularly given the environment within which the agreement was negotiated but, in any event, I have no hesitation in finding that a valid majority of employees have genuinely made the agreement in accordance with section 170LE of the Act and, in particular, I do note the ballot process and the very strong endorsement from those that voted for the agreement.

PN82

Secondly, as to the relationship between the proposed agreement and the safety net awards, I indicate without hesitation, in my view, that it meets the no disadvantage test. I have noted the issues that are set out in the statutory declarations, together with the balance of the package and in my view it is a very comprehensive and constructive agreement which is clearly not inferior and, in my view, it does meet requisite requirements.

PN83

I also note that the agreement deals with a number of issues that have been before this arm of the Commission in a number of respects, including the consolidation of the disputes process, the clarification of the arrangements for fixed term employment, together with other elements and I commend the parties on dealing with those matters through the agreement.

PN84

I have also of course considered the definition of the coverage of the agreement, in particular, the exclusion of a number of employees and, more particularly, the document process group. I, of course, under section 170LW(8) of the Act have to consider whether that was unfair. In my view, given the circumstances, including the circumstances leading to that point, the intention of the parties to negotiate an agreement in their own particular interests and also the undertaking to apply the first justice by venture of the action, in my view, the definition is not unfair and does not prevent its certification.

PN85

In that context I confirm that the Commission will certify this agreement pursuant to the Workplace Relations Act 1996. The orders will be settled and signed in due course, but they will confirm that the agreement is certified and will commence operation on and from today's date with a normal life extending on to 30 June 2006. A copy of those orders, together with the now approved agreement shall be supplied to all parties for their own use and reference.

PN86

Lastly, I have already observed both the general and constructive nature of the process and the agreement itself. I am aware from other matters and from general observations that the climate within which the agreement was negotiated would necessarily have been all that easy for parties. I commend you on the persistence and constructive nature of your negotiations and I have every confidence that the agreement that I have just certified will stand you in good stead and I wish you all the best in that respect and hope I don't see you too often, at least in that context in the meantime. The Commission will be adjourned.

ADJOURNED INDEFINITELY [3.55pm]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #A1 BOOK OF DOCUMENTS TENDERED BY MR GLADIGAU PN25