C2004/6133, Transcript of Proceedings [2004] AIRCTrans 4721 (6 December 2004)

AUSCRIPT AUSTRALASIA PTY LTD
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TRANSCRIPT OF PROCEEDINGS

O/N 2556

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT O'CALLAGHAN

C2004/6133

APPLICATION FOR AN AWARD

Application pursuant to section 111(1)(b)
of the Act by the Australian Municipal,
Administrative, Clerical and Services
Union for an award

ADELAIDE

9.36 AM, THURSDAY, 25 NOVEMBER 2004

Continued from 18.10.04

PN37

THE SENIOR DEPUTY PRESIDENT: I note there are no changes in appearances. I have received some material from the parties as late as this morning. It is probably appropriate that I advise the parties of the information that I have. I have statements, together with attachments, from Mr Peter Smith and Mr Wayne Smith. I have a book of documents from the ASU and I have a supplementary list of documents, I am not absolutely certain who has provided that to me but I have a supplementary list of documents that I received this morning.

PN38

In addition to that, I can confirm to the parties that consequent upon receiving advice from Business SA of its position in this matter, I sought clarification from the President as to his intentions relative to allocation of the matter. The President responded to my advice on 16 November indicating that he had considered the application pursuant to section 111AA of the Act by Business SA on behalf of St Vincent de Paul Society SA Limited and that he had decided, pursuant to section 36(3) of the Act, the application should continue to be dealt with my myself. So that, I think, summarises the events that I am aware of since the last hearing of this matter. Mr Willcox.

PN39

MR WILLCOX: Sir, perhaps I should mention first, the documents that you received this morning, as I understand it, sir, they were issued by the respondent in this matter, they certainly didn't come from the union. The only documents that the ASU have submitted were submitted in accordance with the orders of 17 December [sic] and are contained in the ASU book of documents and so these documents are news to me. I might add, sir, the first time I have seen them is about a minute or two ago. I believe they were sent to the ASU late yesterday. When I left my office at a quarter to 4 last evening, no documents had arrived so I hadn't seen this supplementary list of documents, nor the documents that are associated with it.

PN40

THE SENIOR DEPUTY PRESIDENT: You have received them now?

PN41

MR WILLCOX: Yes, I have just been given - I understand I have been given some of them, I am still not certain, sir.

PN42

THE SENIOR DEPUTY PRESIDENT: Mr Willcox, you appear to have documents that I do not have.

PN43

MR WILLCOX: Perhaps Mr Austin can shed some light on that, sir.

PN44

MR AUSTIN: Your Honour, my understanding is a courier with the documents was dispatched about 2.30 yesterday afternoon to the ASU offices. Because of coming in here, what I have given thusfar before you came in, sir, was a document and a note you say, your Honour, you do not have it, well, that came from item 6 on the supplementary list of documents, it is part of a CD ROM. We had parts of a CD ROM printed out. Mr Willcox and I were discussing that. Sir, I note that Mr Willcox says that the documents were required to be filed by 17 November. With the exception of perhaps the last item on the list - - -

PN45

THE SENIOR DEPUTY PRESIDENT: Which list, Mr Austin?

PN46

MR AUSTIN: The supplementary list, sir.

PN47

MR WILLCOX: Sir, if I might just - I don't have that list in front of me and perhaps would appreciate a copy if one is available.

PN48

MR AUSTIN: I say these are matters that should not prejudice the applicant as they are the, if you like, the applicant's witnesses own documents with the - they have had access to them - with the exception of perhaps item 3 and item 12. That is an internal - - -

PN49

THE SENIOR DEPUTY PRESIDENT: Mr Austin, I have to stop you there. I am looking at a document called: Supplementary list of documents. It has 12 supposed items. If I turn the page, none of those documents, subsequent to that cover sheet, appear to be identified. I can understand there is a policy and procedure for unacceptable behaviour and attendance. I can understand there is a sample: Work for the Dole activity time-sheet.

PN50

I have noted there are minutes of meetings in 1999. I have noted an application for employment by Mr Michael Stuart-Smith, which is replicated elsewhere in the documents provided to me. I have noted a job description for a workshop coordinator. I can't identify anything to do with the CD ROM. I can't anything to do with a bundle of photographs. There may be a letter to Mr McCarthy of September 2004, yes. There is a memo - there may or may not be a memo reflecting the proposed item 9. There is a workers compensation claim form. There is a list of timber and furniture items and there is a letter from Mr Peter Smith to Marie Willis in July 2003.

PN51

Now, you are going to need to tell me why it is, first of all, that I should take any of this material into account and secondly, how I should consider the material which is identified in that cover sheet but which I certain don't have and I am presuming Mr Willcox does not have.

PN52

MR AUSTIN: Well, sir, it wasn't possible to copy the CD ROM and attach it to the list of documents and there was considerable copying involved and I had the relevant parts copied, sir.

PN53

THE SENIOR DEPUTY PRESIDENT: You have had a considerable number of weeks in which to prepare this matter.

PN54

MR AUSTIN: I appreciate that, your Honour. This information only came into my hands the last day or so so it is not a matter that I have been sitting on the information but also, if your Honour pleases, looking at the documents, for example, for example, the sample Work for the Dole activity time-sheet, that is a document signed by the applicant's witnesses, Mr Michael Stuart-Smith. As you say the job application is replicated elsewhere by the workshop coordinator is again a document signed by Mr Stuart-Smith and the letter, the correspondence from - correspondence dated is a letter from Mr Stuart-Smith to Mr McCarthy.

PN55

The next document relates to Mr Stuart-Smith's wage rate being set. The next document is Mr Stuart-Smith's own workers compensation claim form signed by him and this list of furniture made, that comes from records and dockets put forth by Mr Stuart-Smith. So effectively what we are saying is that - we haven't put it forward - this is something the applicant in - I mean, the applicant should put the full picture before you and the applicant has been selective in relation to which information from Mr Stuart-Smith he puts forward.

PN56

So we are saying in the interest of completeness and fairness, that Mr Stuart-Smith's job description as workshop coordinator, which he would have and which he hasn't disclosed, should be before you. His letters to Mr McCarthy - from him to Mr McCarthy also should be before you. This workers compensation claim form and the relevance of that is that it describes his occupation in the workers compensation claim form and that described his occupation as carpenter, not as trainer as his statement would have you believe.

PN57

The other letters that have come in, sir, in relation to item 12, for example, the letter from Mr Smith to Marie Willis deals with the issue and the financial viability of the centres and how they have been under the microscope and they will be matters that I will address you as to the potential effects if the applicant's application is granted. Now, I could say, at the time the orders were made on 18 October in relation to production of documents, that related to the roping-in award matter, not the section 111AA application that has been made.

PN58

So the situation regarding items 3 on this supplementary list, the minutes of the SA Centres Committee, item 12, the letter from Mr Peter Smith to Marie Willis, are matters that arise from or relate to, I should say, the section 111AA application rather than the 111(1)(b) application for an order and award and perhaps it may have been prudent for us to contact you and seek some directions as to the matter once the section 111AAA was lodged as to whether that being a distinct discrete application, as to whether we needed some orders and time frames for that but in relation to the number of items on this list, I am saying there can't be any prejudice because they are the applicant's witnesses own documents or at least if not their documents, documents authored by Mr Stuart-Smith, one of their principal witnesses.

PN59

In relation to the other matters that relate to issues regarding financial viability of the sites, then it is a case of they relate to the subsequent application that was issued and appreciate that the President said the allocation should remain with you, sir, but there was an expectation that, you know, perhaps a concern that it might not and might have gone somewhere else in which case orders were being made in relation to producing documents relative to that.

PN60

The other matter that I can say at the outset, sir, I think the application is quite - bearing in mind the nature of St Vincent de Paul, the work the society does, charitable, not for profit organisation, and the nature of the Work for the Dole it is a very short-sight and selfish application by the applicant. It is based on the Work for the Dole scheme. If St Vincent de Paul ceases to operate the Work for the Dole scheme, there is no grounds, there is no legs to this application.

PN61

Almost cries out for a matter that ought to be conciliated so that rather than going through this process the applicant could see the potential consequences of what would flow from a successful application in relation to the non viability of the organisation with these employees, the affected employees at Elizabeth and also at Lonsdale, had to have their wages match the CETSS Award. That is what I am making submissions about, that it would be a shame if that issue couldn't be seen and couldn't be - we had to go through this process.

PN62

It is also interesting that the application is based on the fact that St Vincent de Paul is a sponsor in the Work for the Dole program. It is not a community coordinator. It is a sponsor. The role of a sponsor is very limited. Sponsorship contracts normally only go for 6 months. The current contract started in October this year and will expire in March next year. So if the contract can either be not renewed by St Vincent de Paul because it does not consider it is financially viable any more, it may not be renewed by the community work coordinator because part of the documents that are on the CD ROM indicates that there needs to be satisfaction to the community work coordinator that the organisation providing it is financial viable, at least the project is financially viable.

PN63

I do not think that there is anything out of this - these documents here that would prejudice the applicant so, sir, we seek to rely on them - if my friend hasn't got a copy because he left the office at a quarter to 4 yesterday, before the courier arrived - I can give him Mr Sheehan's copy and that way we are all working - we have just done that.

PN64

THE SENIOR DEPUTY PRESIDENT: I do not have a copy either at this stage other than the material that I have already referred to, Mr Austin, and I can assure you that I left the office some time later than quarter to 4.

PN65

MR AUSTIN: The supplementary list I understand was filed yesterday, sir. The other item is - - -

PN66

THE SENIOR DEPUTY PRESIDENT: Yes, I have that, received that this morning. I don't have anything to do with the CD ROM or the bundle of photographs.

PN67

MR AUSTIN: Right the CD ROM - a print of a slide show from the CD ROM that I can hand up now, sir.

PN68

THE SENIOR DEPUTY PRESIDENT: Very well, thank you. Mr Austin, as I understand the issues you are putting to me, the fall into three categories. Firstly are you suggesting, whilst I am not marking any of this material before me at the present time, I should consider any material provided to me over the last 2 days insofar as that is relevant to either the roping-in claim or the section 111 argument. Secondly, if I am understanding you correctly, you are putting to me that the issue of section 111AAA ought to be considered first. Thirdly, I understand you to be saying that relative to that section 111AAA request or issue that matter should be the subject of an attempt at a conciliated outcome as a precursor to any arbitration. Have I correctly summarised what you have put to me?

PN69

MR AUSTIN: Yes, sir, that's correct, yes. Sir, I do not know if you want to hear me more on the reasons why I think there should be conciliated outcome?

PN70

THE SENIOR DEPUTY PRESIDENT: I am happy to hear whatever you want to put to me at this stage. I understand we are debating, in effect, the way in which this matter will proceed from here.

PN71

MR AUSTIN: Well, if we proceed and that is the respondent succeeds on its section 111AAA application, well we are left with Michael Stuart-Smith and Kim Unger at Elizabeth, probably two unhappy employees. If we do not succeed on that in the first instance, I think it is a case that, well, the roping-in application is based on these two persons being trainees as opposed to we saying they are carpenters or one a carpenter and the other one a workshop supervisor. So even a defeat of the 111AAA application is not going then necessarily see success in relation to 111(1)(b).

PN72

If we do have a case of - if it is then a matter of yes, the applicant is wholly successful and roped in, well, then the effect is that these employees wage rates are going to be lifted to a level which would render the operation so un-viable it wouldn't continue. At the moment there is a level of support within the charitable organisation because it provides work for - direct employment for four people, two at the Elizabeth workshop and two at the Lonsdale workshop. Now, this only relates to employees at the Elizabeth workshop where they are ASU members and the employees at the Lonsdale workshop are AWU members but they would be treated the same, the work that is done at the workshop is the same and so on.

PN73

That would mean that the workshops would not have their Work for the Dole contracts extended beyond March next year. So they can go through all this, go through roping-in award, section 111AAA type arrangement and then we get a decision and it might only have an effect for 2 months because once the Work for the Dole scheme goes, there is no leg to the applicant's case. Now, quite apart - what that will mean is there is a direct employment loss to four employees but also then there is the benefits to the Work for Dole participants.

PN74

Okay, they can go somewhere else, they might go to the Salvation Army or some other organisation that provide the Work for the Dole program, the local council whatever, but there is an ongoing benefit which has been that by being able to utilise the resources of Work for the Dole activity people -this is the reason why St Vincent de Paul has kept it up despite the very marginal financial viability which they have been able to do whilst the wages have been determined according to the Furnishing Trades Award, is that the welfare component in relation to the restoration of donated furniture and the return on the welfare vouchers, that would go.

PN75

Part of the evidence in our case will be that over the last 2 years since Mr Wayne Smith and Mr Peter Smith have come in to St Vincent de Paul and Mr Wayne Smith has been responsible for the sales and marketing of these particular activities, that it has seen a turn around time from the welfare vouchers go from anything - could have been up to 18 months by the time some would come in, a person in need, needing items of household goods and furniture donated, repaired, that sort of thing to the turn around time for the vouchers now being in accordance with a couple of weeks.

PN76

Now, if the applicant renders the Work for the Dole un-viable, not only do we lose direct employment for four people but then there is the community on-flow in relation to that. What would happen is these workshop activities would be reduced to just that, reducing it. Getting through work as it could be done, as it was before.

PN77

So what I'm saying is there is the potential that, again, I talk about this issue being short sighted - there is the potential that, well, if there is no work for the dole program, no workshops, what happens to the employment for the persons who have made the application, or the person who is going to be affected by the application being made by the ASU?

PN78

So to that extent I consider it is worthwhile sitting down and working out what is a level, bearing in mind the Furnishing Trades Award and what may happen in - it is now 4 months or 3 months time when this current work for the dole contract expires. I mean, if we had not renewed the work for the dole contract in October we wouldn't be before you today. There would be no basis to do it.

PN79

THE SENIOR DEPUTY PRESIDENT: Mr Austin, relative to the third issue, that is the proposal that there be an attempt at a conciliated outcome, the matter in dispute between the parties has according to the material that I've been provided with, been a contentious issue for some substantial period of time.

PN80

MR AUSTIN: Correct, your Honour.

PN81

THE SENIOR DEPUTY PRESIDENT: Now, what do you say to me about whether or not there has been any previous attempt at a conciliated outcome, and depending on the answer to that question, what would differentiate this situation now from any earlier attempt?

PN82

MR AUSTIN: The attempts before - well, put it this way - haven't got very far. It has been a case - I think part of the history you would see from the statements there is that Mr Stuart Smith has been asking on behalf of himself and Mr Unger for a re-classification since 2002, so the last 2 years.

PN83

Then in April 2003, the representatives of the respondent, Mr Peter Smith and Mr Wayne Smith, met with the two potentially affected employees, Mr Unger and Mr Stuart Smith - that was on 30 April - and they produced a job description which talked about the workshop's supervisor role. That was in response to another job description that Mr Stuart Smith had drafted for himself in March last year in which he called himself the "Training Coordinator", or a title to that effect.

PN84

The long and the short of it is there were some discussions in relation to this between Mr Rock from Business SA and Mr Heard from the ASU. They didn't reach an agreement and 2 months later the application to rope the St Vincent's de Paul Society into the award was lodged. After that was lodged there really wasn't any further discussion between the parties, the parties continued and had the normal relationship.

PN85

That was lodged in August 2003. Then various correspondence took place in relation to the roping-in, in October 2003 and on, and then in early 2004 the ASU through Mr Barry O'Brien and a matter before Commissioner Gay, deleted St Vincent de Paul Society off the roping-in application, that was the end of it.

PN86

Then the matter came before you in relation to an application to amend the orders made by Commissioner Gay on the basis that, well, they didn't mean to let the St Vincent de Paul Society off. You declined the application to vary the dispute finding. That having been done a further log was served and a dispute finding made. A further log - - -

PN87

THE SENIOR DEPUTY PRESIDENT: Sorry, perhaps you need to clarify that, a further log as I understand it had been served.

PN88

MR AUSTIN: Yes.

PN89

THE SENIOR DEPUTY PRESIDENT: Are you saying to me there has been a dispute finding?

PN90

MR AUSTIN: I will just check the date, sir. Sir, while Mr Sheehan is checking the date, I will just say that the last attempt for the parties to get together was in August 2004. The union approached Business SA to see if the matter could be resolved. Business SA agreed and asked the union to put forward a proposal they could consider. Then there was no hearing back from the union, except that they lodged the application for roping-in.

PN91

The matter was dealt with by Senior Deputy President Kaufman on 6 August 2004 recording the findings made by him in Melbourne on 21 July - so the second log was dealt with in August - the first one was April where there was an application to vary Commissioner Gay's dispute finding to put St Vincent de Paul back in.

PN92

THE SENIOR DEPUTY PRESIDENT: Did that second log deal with St Vincent de Paul?

PN93

MR AUSTIN: The second log was not St Vincent de Paul, it was St Vincent de Society SA Inc, as in annexure A part 1 in relation to the dispute finding list. The correspondence from Business SA at that stage to the Australian Industrial Relations Commission and the ASU was, well, noting that a log of claims had been served seeking a dispute finding, but it was a matter of acknowledging that the union could do that and reserving the rights under section 111AAA, or 111(1)(g), whatever it was so advised at the time.

PN94

I expect that your Honour's position to us, so a direction to us on 18 October was, well, according to the correspondence the section 111AAA or 111(1)(g) has been on the table for a long time. It has been a case that the respondent has been reserving its rights in relation to it but actually has not made a formal application, or whatever.

PN95

Hence, by 11 November the respondent, Business SA, should put its position in respect of that, which it did and formalised that by making the application - an application being formally on the table rather than just, we are reserving our rights and we are going to do something about it, is again something that has not been on the table before, apart from a reservation of rights of being a formal application.

PN96

There have been attempts by the employer to have discussions with employees and I expect that the assistance of the Commission would be of value in these matters because it is often the case that an employee hears an employer saying: well, you know, you realise what this is going to do to the Society and those sort of things and, as you say, the based on the correspondence that has been around the matter has been agitated by the employees and the employer for quite some time.

PN97

So you know from the point of view of you know, perhaps, the trust is there in relation to getting the day-to-day job, perhaps the trust in relation to - or the communication channels in relation to getting this wage issued sorted out are not so clear cut - not so longer established and you know it would be a case of perhaps a litigated or an arbitrated outcome. No-one is going to win out of it. I mean, we might win from the point of view of saying: section 111AAA applies to the Furnishing Trades Award, but we have got two pretty grumpy employees.

PN98

THE SENIOR DEPUTY PRESIDENT: Mr Austin, one last question. If the matter is to be the subject of an attempt at a conciliated outcome then I would have to say to you that most conciliated outcomes require a preparedness on the part of at least one party and generally two to move their position in some way.

PN99

Now, my consideration of the documents provided to me by both parties seems to indicate that Mr Stuart Smith and possibly Mr Unger are looking for an increase in either or both their rate of remuneration, or an improvement in conditions of employment - I should perhaps say "and/or an improvement in conditions of employment". In proposing that the matter be the subject of further discussions, can you indicate to me whether or not the St Vincent de Paul Society is prepared to consider a changed position in either of those two respects?

PN100

MR AUSTIN: I understand so, but it would be prudent for me just to confirm my instructions, if I could just take a step back for a minute, sir.

PN101

THE SENIOR DEPUTY PRESIDENT: All right, thank you.

PN102

MR AUSTIN: Yes, the respondent is.

PN103

THE SENIOR DEPUTY PRESIDENT: Thank you. Mr Willcox.

PN104

MR WILLCOX: Yes, sir.

PN105

THE SENIOR DEPUTY PRESIDENT: There are three issues. I might reverse the order in which I raise them with Mr Austin. The first is that if I'm understanding him correctly, Mr Austin is suggesting that the next logical step in this process would be an attempt at arriving at an agreed or conciliated outcome and I seek your views in that regard.

PN106

Secondly, I seek your views as to whether or not you agree that the application made pursuant to section 111AAA ought to be the first issue that is debated in the event the matter proceeds to arbitration. Finally, there is the question of what documentation I should or should not take into account in this matter.

PN107

MR WILLCOX: Sir, in respect of the first point you raised in relation to conciliating the 111AAA application, we believe that the respondent has had more than enough time to put a proposal to our members that they might be inclined to accept. Mr Austin rightly points out that attempts at conciliation or negotiation have been limited but we would submit, sir, that is not for want of trying on the part of the ASU.

PN108

Evidence that will be put before you today will show that numerous approaches have been made to the employer seeking some sort of solution to a long running dispute and, essentially, the response from the employer has been to stone wall those approaches. We fear, sir, that this request for conciliation may really essentially be a disguise to request for further delay and we are concerned that the delays have already been very lengthy in this matter.

PN109

There have been some procedural hiccups along the way, I suppose we could call them, which may have exacerbated that sir, but in our submission certainly nothing has been done on the part of the respondent to expedite this matter. As you rightly pointed out, with respect, for conciliation to have any prospect of success it requires at least one of the parties being prepared to negotiate.

PN110

Of course, the ASU would never preclude negotiation to reach a settled outcome, we naturally prefer an agreement to a litigated outcome in almost all circumstances, however, it does appear that the parties are some distance apart and I have little to give me any confidence that the respondent is indeed prepared to move their position to a degree sufficient to satisfy my members' claims and that, sir, is our position.

PN111

If indeed, as Mr Austin has submitted, his client is in a position to make a realistic proposal then we would not oppose the conciliation, but as I said there is nothing before me at the moment which gives me any confidence that that is the case.

PN112

I'm in your hands in respect of how we go from here, sir, but I might suggest that you know, perhaps a very short adjournment of a few minutes to allow Mr Austin to indicate to me exactly what it is that he might propose and what the range that we might be working within in a conciliation environment is, maybe I can give you a more definitive answer, sir.

PN113

THE SENIOR DEPUTY PRESIDENT: All right, thank you. Mr Austin, what I'm going to do now is to adjourn the matter for a short time to allow you to engage in a discussion with Mr Willcox. If in the course of that discussion either or both of you consider that there would be merit in my being involved in that discussion, then I'm happy to do just that.

PN114

I don't see as necessarily a long discussion and I see the onus at this stage fundamentally, or initially resting with the Society for St Vincent de Paul to put a proposal for discussion. Having done so then that onus will obviously shift back on to Mr Willcox and the ASU to respond to that proposition. If the parties come back and say there is absolutely no chance of managing to arrive at an agreed outcome, then I propose that we proceed today and I will then hear Mr Willcox relative to the question of how we deal with the section 111AAA application.

PN115

MR AUSTIN: Sir, I note that Mr Stuart Smith and Mr Unger aren't here, I thought they would be very important to the conciliation process and I would expect that, you know, we would be calling on you for your assistance in relation to these matters.

PN116

THE SENIOR DEPUTY PRESIDENT: Well, if the parties can't finalise the discussions in the next few minutes by virtue of the absence of a key player or two, then I take it you will come back and tell me there is still hope for such an agreement.

PN117

MR AUSTIN: Yes.

PN118

THE SENIOR DEPUTY PRESIDENT: But that the proceedings would need to be delayed in order to give effect to that.

PN119

MR AUSTIN: Sorry, perhaps I've brought up a red herring here. I mean, my coat has been tugged and I'm told they are here, sir.

PN120

THE SENIOR DEPUTY PRESIDENT: Okay, thank you. All right, I will adjourn the matter for a short time.

SHORT ADJOURNMENT [10.17am]

RESUMED [11.30am]

PN121

THE SENIOR DEPUTY PRESIDENT: Mr Austin, that was the longest short adjournment that I have had in a long time.

PN122

MR AUSTIN: I am pleased to report though, your Honour, seeing it is the longest short adjournment we did make progress. We have written agreement, if you like, in relation to a dollar figure for each of the two affected employees. It is basically along the lines of splitting the difference between the Furnishing Trades Award (SA) and the CETSS Award with the ASU were seeking coverage for.

PN123

Now, I understand the actual terms of how we are going implement this have not been agreed and it will take some time and we propose that there being payment under - an above award payment made under the Furnishing Trades Award or above the Furnishing Trades Award for additional duties connected with the Work for the Dole activities and then there are other factors like how will safety net increases be factored in and the like and we would be saying by reference to the Furnishing Trades Award.

PN124

So I understand Mr Willcox will confirm all of this and that then we will spend some time seeing whether we can thresh out any document that reflects this agreement and then if we need your assistance, and anticipate we may just to finalise the terms of that document, to come back before you. I think the way Mr Willcox's sees it is that agreement on the monetary figures was necessary for him to commit to the rest of the conciliation process, the rest of the conciliation process being in the terms of the agreement we might reach. I saw the conciliation process of being agreeing a dollar figure and then the other peripheral issues could be dealt with. Thank you.

PN125

THE SENIOR DEPUTY PRESIDENT: Mr Austin, can I take it that the parties have considered the possibility of either an Australian Workplace Agreement or a certified agreement of some type?

PN126

MR AUSTIN: That is what we are also talking about.

PN127

THE SENIOR DEPUTY PRESIDENT: What are you proposing to me relative to this matter today then? That the matter be adjourned or that there be discussions now about the mechanism to be used to give effect to the agreement that has been reached?

PN128

MR AUSTIN: I would be happy to have discussions now about the mechanisms of the agreement to be reached but I understand Mr Willcox wants to have some time to consider that and perhaps exchange some correspondence or the draft document.

PN129

THE SENIOR DEPUTY PRESIDENT: I see, thank you. Mr Willcox.

PN130

MR WILLCOX: Sir, as I understood the questions that you put to me prior to the break, you were asking me, essentially, under what circumstances the ASU would consider having this matter referred to conciliation. I put to you that the ASUs position was that should an in principle proposal be put to us that we saw some prospect of reaching a successful settlement on that basis, then I would be happy to have the matter adjourned and perhaps referred to conciliation at some later stage.

PN131

Mr Austin has said that there has been agreement on the figures, I would characterise our recent exchange as being the respondent has put a proposal to the ASU, which effectively is to split the difference between the two claims with some minor variation in respect of Mr Stuart-Smith and that that proposal, from a prima facie basis, has a prospect of satisfying our members' claims and on that basis I am prepared to adjourn today's proceedings by consent and continue negotiating with the respondent to finalise the details of that agreement of which there are some few and some few that no doubt have yet to occur to me so I would be looking at some time for the parties to seek to thrash out the full details of the agreement using the figures that Mr Austin has provided to me as a basis for that.

PN132

Perhaps, just as a safety net, if you like, sir, have a conciliation conference scheduled for some time in the not to distance future - I would suggest 2 to 3 weeks away - so that the parties could then come back before you and conciliation report back to you on the progress of our negotiations and hopefully, very much hopefully, have a final document which should settle this matter finally and for all.

PN133

THE SENIOR DEPUTY PRESIDENT: Mr Willcox, are you to considering the possibility of either Australian Workplace agreements or some kind of certified agreement or are you looking for an agreement that would be put into effect by way of simply an over-award arrangement or variation to a relevant award?

PN134

MR WILLCOX: Sir, I would be willing to consider - the only of those options which you have not raised is the variation. So it has been put to Mr Austin that a certified agreement or possibly an AWA may be the way to do this. At the moment the offer has been framed in terms of an over-award payment by agreement and that seems a fairly practical way to go as well but we don't rule any of those options out, sir, and all of them may - whichever is the most convenient and most conveniently resolve these matters we will work with.

PN135

THE SENIOR DEPUTY PRESIDENT: All right. Mr Willcox, I am happy to adjourn these proceedings on that basis. I will list the matter, at some stage in the next 2 to 3 weeks. I will not make a time now. I am afraid the technology that I make times whilst sitting is currently disabled and is quite beyond my capacity to repair but my office will be in contact with the parties in the next couple of days.

PN136

The other alternative is that I could leave the matter in your hands so that if you consider, in say a fortnight's time, that it would be desirable for a further conference to be convened, they you could contact my office and we will arrange that accordingly. I do have to say that is a preferred approach. There is a tendency that if I list a matter for a report back discussion, for little to happen until either that conference or moments before it so I tend to think it might be better that I should leave the matter in your hands.

PN137

I can assure you that if you come back in the next, say, 2 weeks and seek a conference, we will fit you in before Christmas, be it early in the morning or late in the afternoon but you will be fitted in somehow.

PN138

MR WILLCOX: I am perfectly happy with that, sir. That seems a practical and sensible way to approach the matter.

PN139

THE SENIOR DEPUTY PRESIDENT: Very well. I will adjourn the matter on that basis.

ADJOURNED ACCORDINGLY [11.38am]