AG2004/8237, Transcript of Proceedings [2004] AIRCTrans 4937 (17 December 2004)

AUSCRIPT AUSTRALASIA PTY LTD
ABN 72 110 028 825

Level 7, ANZ House 13 Grenfell St ADELAIDE SA 5000
Tel:[phone] Fax:[phone]

TRANSCRIPT OF PROCEEDINGS

O/N 2609
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT O'CALLAGHAN

AG2004/8237

APPLICATION FOR CERTIFICATION
OF AGREEMENT

Application under section 170LK of the Act
by Delco Australia Pty Ltd and Another for
certification of the Delco Australia Pty Ltd
Certified Agreement 2004

ADELAIDE

9.15 AM, WEDNESDAY, 8 DECEMBER 2004

PN1

MR C. PLATT: I appear on behalf of Delco Proprietary Limited.

PN2

MR T. ROBERTS: I am employee representative for Delco.

PN3

THE SENIOR DEPUTY PRESIDENT: I can advise the parties that I have read both the statutory declarations and the agreement. I propose to deal, first of all, with the process that was followed in order to arrive at this agreement before moving on to consider the agreement itself. Mr Platt, do you have a copy of the employer's notice of intention to make the agreement that you can provide to me?

PN4

MR PLATT: Yes, I do. Just by way of background, Delco Australia Proprietary Limited have a workshop in Brisbane, Lytton, Queensland and at present are involved in projects at Moomba in South Australia and Spring Gully in Queensland, in the middle of Queensland, just near Roma. The process that was undertaken was the notices that are before you were distributed to Brisbane and Spring Gully and Moomba. The only differences between the notices is the name of the person who the agreement is available from. You have only got two notices there. There is a third notice, which I have only got one copy of, in identical form. That refers to a person by the name of Don Mascle and that is the form that was used in the Brisbane workshop.

PN5

THE SENIOR DEPUTY PRESIDENT: When did that third notice - - -

PN6

MR PLATT: On 8 October. I have got a copy of it here and I will give it to your associate.

EXHIBIT #D1 LETTERS DATED 06/10/2004 AND 13/10/2004 AND 08/10/2004

PN7

THE SENIOR DEPUTY PRESIDENT: I now note that I have been given a letter in similar terms dated 8 October 2004. Mr Platt, do I take it you want that letter back?

PN8

MR PLATT: Just a copy.

PN9

THE SENIOR DEPUTY PRESIDENT: I will include that with the bundle documents I have marked as D1 and my associate will copy it for you at the conclusion of these proceedings. Mr Platt was the document, that is referenced in the second of the dot points in D1, changed in any way subsequent to the letters that were sent out to employees?

PN10

MR PLATT: No, your Honour.

PN11

THE SENIOR DEPUTY PRESIDENT: How did the employer set about explaining the terms of the agreement?

PN12

MR PLATT: The employer held meetings at each location with the employees were the terms and conditions of the agreement were discussed. They also provided a one-page document which indicated the major changes to how the wages and conditions were presently and that document described the changes to the wage rates and the increases that would occur during the course of the agreement.

PN13

THE SENIOR DEPUTY PRESIDENT: Given that the entirety of the workforce to be covered by the agreement is to be casual employees, did the meeting that you referred to or meetings, cover all of the employees?

PN14

MR PLATT: Everybody who was performing work at the time received a notice and those people who were not present in the workplace were sent correspondence by registered mail but my instructions are everyone was consulted.

PN15

THE SENIOR DEPUTY PRESIDENT: I see. Thank you, Mr Platt. Mr Roberts, can I clarify, first of all, your standing here today. You are here as an employee representative?

PN16

MR ROBERTS: Yes.

PN17

THE SENIOR DEPUTY PRESIDENT: Were you elected as such by the employees?

PN18

MR ROBERTS: Yes. When we had the first meeting the employees picked a representative, which was me at Moomba and put to a vote.

PN19

THE SENIOR DEPUTY PRESIDENT: I see. As such did you have a particular role in negotiating the agreement?

PN20

MR ROBERTS: No, not in negotiating the agreement. All I was asked to do was to make sure everyone was aware of the agreement and had copies available.

PN21

THE SENIOR DEPUTY PRESIDENT: I see. As such did you receive a letter on or about 12 October in the terms that has been provided to me?

PN22

MR ROBERTS: Yes, everybody received a letter - yes, it was 12 October in Moomba.

PN23

THE SENIOR DEPUTY PRESIDENT: Did you access a copy of that proposed agreement?

PN24

MR ROBERTS: Yes.

PN25

THE SENIOR DEPUTY PRESIDENT: Can you tell me whether that agreement was changed in any way after that date?

PN26

MR ROBERTS: I got a copy on the 12th and I signed a copy last week and they looked the same.

PN27

THE SENIOR DEPUTY PRESIDENT: Thank you. Did you participate in any meetings held by the employer to explain the terms of the agreement?

PN28

MR ROBERTS: Yes.

PN29

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Robert. Mr Roberts, I am going to ask Mr Platt some questions about the agreement itself. The questions that I will be asking him are not inviting him to rewrite the document in any way, they go to addressing the various factors that I will need to take into account in looking at this application. If you want to comment at all on any of his answers feel free to hop up and tell me that. If you do not do so, I will assume that you are in agreement with Mr Platt.

PN30

Mr Platt, the questions that I have of you generally fall into two groups.

PN31

There are issues of clarification about the terms of the agreement and then there are some questions that I have that are generated by the difficulty that I am having in applying the no disadvantage test to the provisions of this agreement. What I will do is work through the provisions of the agreement. Mr Roberts, have you got a copy of the agreement? I can loan you one from my file, if you wish.

PN32

I am going to go through the agreement in sequence so that the questions I have will jump around a little. Can I first of all seek clarification - looking at the provisions of clause 4, if I understand it correctly, Delco Australia undertake work in Moomba and in various parts of Queensland associated with pipeline maintenance activities, is that correct?

PN33

MR PLATT: That is the state of play as at now, yes.

PN34

THE SENIOR DEPUTY PRESIDENT: As such, given the historical working arrangements at Moomba, for example, should I understand the employees work on some form of fly-in-fly-out roster?

PN35

MR PLATT: Yes.

PN36

THE SENIOR DEPUTY PRESIDENT: They work compressed hours over the time they are on site, is that the case?

PN37

MR PLATT: Yes, that is correct, your Honour. They work 10 hours a day, 4-week roster, three on and one off. It is really project-dependant and that is one of the reasons why we took the conventional hours of work approach to it rather than a lump sum run.

PN38

THE SENIOR DEPUTY PRESIDENT: Clause 9 deals with the grievance procedure with particular reference to stage 4. Do the parties intend that a matter referred to the Commission would be the subject of conciliation prior to arbitration?

PN39

MR PLATT: Yes.

PN40

THE SENIOR DEPUTY PRESIDENT: Clause 10 deals with employment conditions and categories with particular reference to the third dot point, which requires the employee to observe all lawful directions, orders, instructions and policies as varied from time to time by the employer and then continues to say:

PN41

Where you perform work at a client's workplace you must comply with all relevant client policies.

PN42

How are those policies, being the relevant client policies, made available to employees?

PN43

MR PLATT: I will use Moomba as an example. When you attend at Moomba, before you get access to the site, there is a computer-based training program which you go through which identifies the general policies and then if there is a need to go in a particular area that has got policies peculiar to it, then there is a further induction process.

PN44

THE SENIOR DEPUTY PRESIDENT: I see. Presumably if one of those client policies changed, there would be a further explanation give to the employees?

PN45

MR PLATT: Yes.

PN46

THE SENIOR DEPUTY PRESIDENT: That would be the responsibility of Delco, would it?

PN47

MR PLATT: Well, normally it is the responsibility, in the end, of Delco but where changes occur, you know, it is quite common for all employees to be re-inducted.

PN48

THE SENIOR DEPUTY PRESIDENT: If I can take you further down clause 10 to the last dot point under 10(a), this represents a requirement not to reveal or use either for the employee's own benefit or anyone else, any confidential information. It is an ongoing obligation, as i read that provision?

PN49

MR PLATT: Yes, sir.

PN50

THE SENIOR DEPUTY PRESIDENT: How will the employee know whether information which they have been given is of a confidential nature?

PN51

MR PLATT: Well, we would say normally the nature of the information itself would indicate that it is confidential. For example, working at Moomba they may become aware, as a result of their activities, of a substantially new gas find or other information which may not, at that point of time, be released to the market and what we are requesting there, information that is obviously confidential or advised to be confidential, will remain so.

PN52

THE SENIOR DEPUTY PRESIDENT: Thank you. Clause 10(b), am I correct in understanding that given all 68 employees are casual employees, that clause would not currently have application?

PN53

MR PLATT: No.

PN54

THE SENIOR DEPUTY PRESIDENT: Then can you explain to me how that clause will operate?

PN55

MR PLATT: Well, that clause will operate that a person who - the existing employees who - sorry. No, I withdraw that. It does not apply to casual employees. It only applies to full-time employees.

PN56

THE SENIOR DEPUTY PRESIDENT: Now, clause 10(e) relates to the types of employment. With particular reference to 10(e)(2) and casual employment, can you tell me how the agreement should be read in the context of the no disadvantage test relative to the provisions of the South Australian Metals Award, for example, as those provisions relate to casual employees and the capacity of a casual employee to convert or to elect to convert his or her contract of employment to full time or part-time employment after a nominated period of time.

PN57

MR PLATT: The casual employee does not have the capacity to elect to full-time employment after a period of time provided in the agreement.

PN58

THE SENIOR DEPUTY PRESIDENT: I understand that but the issue that I am wrestling with though is how I should consider that disparity between the award provision and the agreement provision in the context of the no disadvantage test?

PN59

MR PLATT: Well, we say that in relation to the no disadvantage test this is an agreement and the employees have freely agreed to working on a basis of continuing casual employment. We do not say that there is any disadvantage in respect of that provision and in the alternative we say any disadvantage is clearly outweighed by the other benefits of the agreement. The reality is that the projects that we would operate, for example, the Spring Gully project, will be of less than 12 months duration in any event.

PN60

THE SENIOR DEPUTY PRESIDENT: What about the Moomba project or activity, would that be of that less than 12 months duration?

PN61

MR PLATT: The Moomba activity is ongoing but it is subject to considerable fluctuation, depending on climatic conditions and also the demand for work. For example, as a result of the occurrences of, I think from memory last Christmas, the explosion at Moomba, there was a light of flow line work that had to be performed. However, Delco is not the only company involved in flow line work and I think it was in the last 12 months Delco's share of the flow line work decreased so that, combined with the incidents of rain which makes it impossible to work on pipeline work, can result in fluctuations in labour. However, that is not to say that an employee can make application to Delco to be converted to weekly employment. The fact is that it is not a requirement.

PN62

THE SENIOR DEPUTY PRESIDENT: You talked about the Spring Gully project being of less than 12 months duration. The award talks about 6 months duration.

PN63

MR PLATT: Just excuse me and I will find out how long Spring Gully will last. Spring Gully project is of 4 months duration, I am advised.

PN64

THE SENIOR DEPUTY PRESIDENT: I see, thank you.

PN65

MR PLATT: It is a discrete pipeline running through Central Queensland.

PN66

THE SENIOR DEPUTY PRESIDENT: Can I then take you to part D which relates to the hours of work, breaks and overtime. Are you able to tell me how the work cycles operate with, for example, Moomba in mind?

PN67

MR PLATT: Just excuse me for a moment. The way that Moomba works is obviously there is 38 hours per week, which are the ordinary hours. The hours are calculated on the first 7.6 hours in a day calculated at ordinary time. Then after that the relevant penalty provisions apply depending on the day of the week and whether or not you have used up your 38 hours of the week.

PN68

THE SENIOR DEPUTY PRESIDENT: If, for example, climatic conditions, say rain in the Moomba area stopped work, would casual employees be paid and how would that then impact on their 3 weeks on?

PN69

MR PLATT: My understanding and my instructor will correct me if I am wrong, my understanding is if the rain is for a short period then employees will remain at Moomba and continue to be paid for their shifts. However, if it is obviously a long and extended period, then they will be repatriated back to their place of work.

PN70

THE SENIOR DEPUTY PRESIDENT: When does payment stop?

PN71

MR PLATT: After they have been repatriated.

PN72

THE SENIOR DEPUTY PRESIDENT: In the normal course of events, those employees would work, in any 4-week period they would undertake a total of four lots of 38 hours work, is that the case?

PN73

MR PLATT: No, well, if you are talking about Moomba in a 4 week period - - -

PN74

THE SENIOR DEPUTY PRESIDENT: I am just talking about Moomba at this stage.

PN75

MR PLATT: Okay, in a 4 week period they will work 21 10-hour shifts.

PN76

THE SENIOR DEPUTY PRESIDENT: I see and not be paid for the week off?

PN77

MR PLATT: That is correct.

PN78

THE SENIOR DEPUTY PRESIDENT: Thank you.

PN79

MR PLATT: Just by way of clarification, what we have done with the hours of work clauses, we have looked at the various awards and essentially what has happened is we have gone to the greater of the conditions of all of the awards. For example, you will notice that we have used the 25 per cent penalty for casual employment and that it is 2 hours before on double time for overtime. So essentially, we have gone to the highest common denominator of all of the relevant underpinning awards.

PN80

THE SENIOR DEPUTY PRESIDENT: Given that work which has been undertaken, Mr Platt, would you be able to produce for me a comparative chart showing the award provisions and those that apply under the terms of this agreement?

PN81

MR PLATT: Yes, I can.

PN82

THE SENIOR DEPUTY PRESIDENT: Perhaps structured, by way of example, around the - - -

PN83

MR PLATT: Trade level?

PN84

THE SENIOR DEPUTY PRESIDENT: - - - the Moomba working arrangements.

PN85

MR PLATT: Okay, yes.

PN86

THE SENIOR DEPUTY PRESIDENT: Clause 20, on page 13, it relates to wage rates with particular reference to 20(c). It says:

PN87

The employer may at its discretion pay a composite rate for a specified roster.

PN88

How do you put to me that I should understand that clause, again, in the context of the no disadvantage test?

PN89

MR PLATT: Well, essentially, what that means is that if for a particular project there is a need to come up with a flat rate of, you know for argument's sake, $30 an hour then the company can do so however that flat rate must not be less than would otherwise be calculated by using the balance of the clauses in the agreement. So it cannot operate to undermine the provisions in the hours of work clause and the existing wages clauses. It is merely a mechanism to provide an administratively convenient rate which obviously will depend on the exact roster that is performed.

PN90

THE SENIOR DEPUTY PRESIDENT: I see, thank you.

PN91

MR PLATT: So for example, if you were using Moomba where there is a known cycle and the result of calculating it using ordinary time and penalty rates would result in a wage rate average $27 an hour then a composite rate could be introduced but it could not be any less than $27 an hour.

PN92

THE SENIOR DEPUTY PRESIDENT: Thank you. In terms of looking at the actual wage rates and taking into account the classification structure detailed in clause 19, should I understand that each of the classifications detailed in clause 19 for which there are rates set out in clause 20, draw upon the definition set out in the relevant awards?

PN93

MR PLATT: Sorry, you might want to just rephrase that question I am not understanding what you mean?

PN94

THE SENIOR DEPUTY PRESIDENT: So that if I looked for example at the band 4 tradesperson advanced classification, there is an ENI technician classification.

PN95

MR PLATT: Yes, natural and instrument technician.

PN96

THE SENIOR DEPUTY PRESIDENT: That would be extracted or that definition for that classification would be extracted from the metal industry award, would it?

PN97

MR PLATT: Yes, that would appear in the metal industry award.

PN98

THE SENIOR DEPUTY PRESIDENT: I see, and in each other case I should rely on the definitions in the relevant award for the relevant classifications?

PN99

MR PLATT: That is correct.

PN100

THE SENIOR DEPUTY PRESIDENT: Now, clause 22 relates to transport and accommodation. Given that the clause proposes that people with allowances and travelling arrangements will be determined on a project basis by the employer, how should I apply that particular provision, again, in the context of the no disadvantage test?

PN101

MR PLATT: Well, it is of a positive nature. For example, in relation to the Moomba site, the employees are flown up there and obviously at no cost. Their accommodation is provided, meals and accommodation are provided at no cost but the exact arrangements depend on the location of the work and the particular contract that we are working on but essentially, if people are working in a remote location then they are provided with full board and accommodation at no cost to them. That is certainly true of the Spring Gully project and the Moomba project, however, people who are working at the workshops in Brisbane reside in their own homes and come to work on a normal basis.

PN102

THE SENIOR DEPUTY PRESIDENT: So should I take it then that what you are saying to me is that a combination of those provisions together with the wage rates set out in this agreement result in overall payments that exceed those that would apply in all of the relevant awards?

PN103

MR PLATT: Yes.

PN104

THE SENIOR DEPUTY PRESIDENT: Could I ask perhaps that you include or address that in the summary that you are going to provide to me with Moomba being taken as the exemplar? Can I take you to clause 30. Can I take it then that if an employee is working in Queensland then the Queensland long service leave provisions are applied?

PN105

MR PLATT: Yes, provided that there is a provision that the employee and the employer may cash out any long service leave entitlement if they chose to do so.

PN106

THE SENIOR DEPUTY PRESIDENT: I see, so that in effect, clause 30 overrides the provisions of clause 6 which exclude the application of State or Federal legislation but do so only relative to long service leave?

PN107

MR PLATT: Yes.

PN108

THE SENIOR DEPUTY PRESIDENT: Yes, thank you, Mr Platt. Now, Mr Roberts, can I take it that you are in agreement with all of Mr Platt's responses to my questions?

PN109

MR ROBERTS: Yes.

PN110

THE SENIOR DEPUTY PRESIDENT: Can I just take you to one issue which is the very last clause in the agreement, it is the signatory page or clause. Did you sign the agreement on behalf of the employees?

PN111

MR ROBERTS: Yes.

PN112

THE SENIOR DEPUTY PRESIDENT: Did you mean to put the date of 30/12/2004 in there?

PN113

MR ROBERTS: Yes, I did.

PN114

THE SENIOR DEPUTY PRESIDENT: That date has not arrived yet, Mr Roberts.

PN115

MR ROBERTS: No, I didn't. It was 30 November 2004 I signed that.

PN116

THE SENIOR DEPUTY PRESIDENT: I see.

PN117

MR PLATT: If it would assist the Commission, it was signed the date that the agreement was lodged.

PN118

THE SENIOR DEPUTY PRESIDENT: Thank you. Yes, thank you, Mr Roberts. Mr Platt, how long do you need to produce that document given that I am also going to ask that you show a copy of it to Mr Roberts before you give it to me so that Mr Roberts can acknowledge that he is in agreement with it?

PN119

MR PLATT: If I could just understand what is required in the document. You are looking at Moomba so you are looking at effectively the South Australian metals award - metal industry award versus the agreement and as I understand it you want a breakdown of the hours of work provisions and the living away from home allowance provisions that would apply to - and I was going to pick a trade level 4, by way of example, in the award versus this agreement? Am I understanding you correctly?

PN120

THE SENIOR DEPUTY PRESIDENT: Nearly. I would be looking at a comparison of the metals award and the construction and maintenance award and I am asking that that comparison be arrived at on the basis of whatever working arrangements apply to employees at Moomba.

PN121

MR PLATT: So effectively I will get the 21-day roster for Moomba for a trade level and basically apply the provisions of the metals award and the AWU construction award and the agreement?

PN122

THE SENIOR DEPUTY PRESIDENT: Yes, you might address that in the context of both casual employment which exists now but also the capacity under the terms of this agreement for full-time employment.

PN123

MR PLATT: All right, so do it for a full-time tradesperson and a casual working the - - -

PN124

THE SENIOR DEPUTY PRESIDENT: Yes, the issue that commonly arises in that regard particularly relates to the treatment of the week off.

PN125

MR PLATT: Okay.

PN126

THE SENIOR DEPUTY PRESIDENT: It is that issue that is one of the key matters that I am wrestling with at the moment.

PN127

MR PLATT: Is there a question in relation to the week off that if answered solves your concerns? It is just that I have got Mr Barnett with me.

PN128

THE SENIOR DEPUTY PRESIDENT: I will still require the summary. The issue with the week off that arises commonly in these situations though, Mr Platt, is that sometimes a week off is arrived at by compressing working hours over a 4 week cycle so that the total of 152 working hours is worked in a shorter period of time than would normally apply and in effect, the employees accumulate those days off as an alternative to weekends off, if you like.

PN129

MR PLATT: Yes, so it is a question of whether or not in the Moomba roster there is 152 ordinary hours compressed into 3 weeks or whether there is 114 ordinary hours? That is the difference I think in relation to your - - -

PN130

THE SENIOR DEPUTY PRESIDENT: Well, that may be the case but perhaps there is a bigger issue as to what this agreement provides for in that regard?

PN131

MR PLATT: All right, okay, yes I can do that - - -

PN132

THE SENIOR DEPUTY PRESIDENT: Can I indicate to you that if in the process of developing that comparative chart you identified potential difficulties in terms of compliance with that no disadvantage test, I would be very happy to consider any undertaking that might be made in that regard.

PN133

MR PLATT: Okay.

PN134

THE SENIOR DEPUTY PRESIDENT: But I would require whatever you are going to give me to be shown to Mr Roberts.

PN135

MR PLATT: Well, what I am proposing to do is to do that document now so I would expect to get that document to you this afternoon and Mr Roberts would have viewed it before I get that to you.

PN136

THE SENIOR DEPUTY PRESIDENT: All right, well, I am in your hands in that regard. I don't want to rush you so that if you do take longer I am happy to allow at least a week.

PN137

MR PLATT: I am just conscious of Christmas approaching and we are pretty busy and if I don't get it done now then it is not going to get done and having, as I say, Mr Roberts is down from Moomba today anyway so I might as well - and Mr Barnett is based either in Western Australia or Perth depending on when I ring him up - sorry, Western Australia or Queensland so it is probably easier for me to do it now whilst I have got everybody here.

PN138

THE SENIOR DEPUTY PRESIDENT: All right, thank you. Now, Mr Roberts, are you clear on what I am asking Mr Platt to do for me?

PN139

MR ROBERTS: Yes, basically, yes.

PN140

THE SENIOR DEPUTY PRESIDENT: You see, if it helps you at all, the Act requires that I need to look at the agreement in the context of what we call a no disadvantage test. That is, I need to be satisfied in overall terms that the agreement is at least as beneficial to employees as the relevant award would be and because primarily of the working hours structure which applies under the terms of this agreement, I am just anxious that I can be satisfied of that situation.

PN141

When I referred to an undertaking it was simply to the effect that the Act allows that where I am concerned that an agreement might not meet one of a number of requirements necessary for certification which include that no disadvantage test, I can consider an undertaking from the employer about the way in which the agreement will operate so as to satisfy myself that that requirement is met.

PN142

I am certainly not suggesting that the employer is setting out to deprive or intentionally deprive employees of benefits under the awards, it is simply the case that most awards are structured around a normal 38-hour week and where different arrangements are established to apply to a particular remote location then it is sometimes no easy to do a like for like comparison. Does that help you?

PN143

MR ROBERTS: Yes.

PN144

THE SENIOR DEPUTY PRESIDENT: All right, thank you. Now, you will need to advise Mr Platt of your agreement or any concerns that you might have with that summary sheet so that that can be reported back to me, all right?

PN145

MR ROBERTS: Okay.

PN146

MR PLATT: On the basis that the summary sheet is provided today, it is going to be pretty much a 1 page document I would expect, 1 or 2 at the most, how does the Commission intend approaching the balance of the certification process?

PN147

THE SENIOR DEPUTY PRESIDENT: Well, I can indicate to you that on the information that has been provided to me, Mr Platt, I am satisfied that the agreement is about matters which are pertaining to the employment relationship so that it meets what is sometimes now referred to as the Electrolux test. I am satisfied on the information provided to me that the agreement was reached through a process consistent with that set out in section 170LK of the Act.

PN148

I am not in a position to give you any indication about the no disadvantage test but I have said to you that if you perceived a difficulty in that regard you may care to give me an undertaking. If I perceive such a difficulty on consideration of the material you are going to provide to me, I would re-list the matter, if need be, extending the opportunity to any party to be represented by way of a video link so as to try to clarify that issue.

PN149

MR PLATT: I don't mean to prejudge you but on the basis - - -

PN150

THE SENIOR DEPUTY PRESIDENT: You are entitled to prejudge me, Mr Platt.

PN151

MR PLATT: All right, okay.

PN152

THE SENIOR DEPUTY PRESIDENT: Whether it persuades me or changes my mind in any way is entirely problematic.

PN153

MR PLATT: On the basis that you know, the comparison of the actual hours worked at Moomba when you compare the two awards and the agreement produces a wage outcome in the agreement that is higher or certainly not less than the higher of the two awards, on that basis would your Honour be then satisfied in relation to the no disadvantage test or are there some issues other than wages that you have got some concerns about?

PN154

THE SENIOR DEPUTY PRESIDENT: Well, the basis for the concerns that I have raised relate to wages, travel arrangements and payments and working hours arrangements. Depending on what you cover in that schedule or comparative chart, may resolve my concerns. I don't think I can take it further than that. If I can certify the agreement on the basis of the information provided to me I will do so and I will endeavour to issue a certificate as soon as I possibly can. Unfortunately, there is a certain lack of Christmas harmony at the moment which is impinging on my time.

PN155

MR PLATT: Sure.

PN156

THE SENIOR DEPUTY PRESIDENT: But I will do so as soon as I possibly can. In that event, any certificate that I issue will reference the various matters abut which I have sought clarification and it will refer the parties to the transcript if they require information about the responses provided to me.

PN157

MR PLATT: Thank you. The only reason I ask is that one of our clients has an interest in us reaching an agreement and wishes to be notified when the agreement has been approved.

PN158

THE SENIOR DEPUTY PRESIDENT: Yes, well, as I said, I will get to the agreement as soon as I possibly can and I can't take it any further than that.

PN159

MR PLATT: Thank you.

PN160

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

ADJOURNED INDEFINITELY [9.55am]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #D1 LETTERS DATED 06/10/2004 AND 13/10/2004 AND 08/10/2004 PN7