AG2005/4337, Transcript of Proceedings [2005] AIRCTrans 1387 (27 June 2005)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 11888-1

SENIOR DEPUTY PRESIDENT HARRISON
SENIOR DEPUTY PRESIDENT DUNCAN
COMMISSIONER LARKIN

AG2005/4337 AG2005/4338 AG2005/4568

APPLICATION BY RAILCORP (RAIL CORPORATION NEW SOUTH WALES) & RAIL INFRASTRUCTURE CORPORATION AND ANOTHER
s.170LC - Multiple business agreement
(AG2005/4337)

APPLICATION BY RAILCORP (RAIL CORPORATION NEW SOUTH WALES) & RAIL INFRASTRUCTURE CORPORATION AND ANOTHER
s.170MH - Application for termination of agreement
(AG2005/4338)

APPLICATION BY RAILCORP (RAIL CORPORATION NEW SOUTH WALES) & RAIL INFRASTRUCTURE CORPORATION AND ANOTHER
s.134N of the IR Act - Certified Agreements may be terminated by the parties
(AG2005/4568)

SYDNEY

TUESDAY, 14 JUNE 2005

Continued from 9/6/2005

PN439

SENIOR DEPUTY PRESIDENT HARRISON: Are there any changes to the appearances?

PN440

MR M HARMER: I seek leave to appear and intervene on behalf of Australian Rail Track Corporation Ltd in respect of both matters.

PN441

MR M DAVISON: I appear on behalf of APESMA. Just in case I have to leave I appear here with my colleague MR D VAUGHAN.

PN442

SENIOR DEPUTY PRESIDENT HARRISON: Thank you, Mr Davison. Any difficulty with leave being granted to Mr Harmer both to appear as solicitor and to intervene?

PN443

MR THISTLETHWAITE: No objection, your Honour.

PN444

MR KITE: No, your Honour.

PN445

SENIOR DEPUTY PRESIDENT HARRISON: Yes, leave is granted,
Mr Harmer. Mr Kite.

PN446

MR KITE: If the Commission pleases. No doubt the Commission was busy over the weekend with their homework and those instructing me have been very busy, as the Commission will see during the course of the morning. There are a number of issues raised and we have sought to answer them in effectively four ways. The Commission should have received on Friday the executive summary from the waterfall inquiry report together with chapters 12, 13 and 18 of that report and I will return to those a little later and identity some relevant portions, and a copy of the national standards for health assessment rail safety workers.

PN447

We have prepared a supplementary affidavit of Mr Greenhalgh going to a number of the questions specifically raised by members of the bench and we have prepared some written submissions to address some of the topics. I'm cognisant of the amount of time that we have available. We have sought to incorporate as much as we can in written form which I will speak to briefly. We have also prepared an application under the Industrial Relations Act 1992 and the Industrial Relations Reform Act 1993 for the termination of a section 134C agreement, which I will make available to the Commission during the course of the day. That agreement is presently incorporated in the 170MH schedules but it is more appropriately addressed under the legislation.

PN448

SENIOR DEPUTY PRESIDENT HARRISON: And I suspect the least of our problems there will be any procedural or other issues relating to service or notice, all of which I assume we could confidently waive?

PN449

MR KITE: I think so.

PN450

SENIOR DEPUTY PRESIDENT HARRISON: On your instructions there's no-one who might have a potential interest in that that isn't here or should be here?

PN451

MR KITE: That isn't here and isn't otherwise consenting to the application.

PN452

SENIOR DEPUTY PRESIDENT HARRISON: Yes. Well, we can deal with any orders waiving what might otherwise be necessary when you come to it.

PN453

MR KITE: If the Commission pleases. What I propose - - -

PN454

SENIOR DEPUTY PRESIDENT HARRISON: Well, it presumably will need to be filed today.

PN455

MR KITE: Yes, I will seek leave.

PN456

SENIOR DEPUTY PRESIDENT HARRISON: All right. Well, your instructing solicitor can liaise with my associate so that the registry might be able to attend to any administrative requirements urgently.

PN457

MR KITE: If the Commission pleases. I propose to complete the evidence of
Mr Greenhalgh's in his original affidavit, perhaps skipping over things a little more quickly than I did on Thursday having regard to a good deal of the discussion which occurred and also the areas of interest expressed by the bench, then deal with the supplementary affidavit, then take the Commission to certain sections of the waterfall report and finally deal with the written submissions that we have prepared and the further application in respect of the 134C agreement. So I can go to the first affidavit of Mr Greenhalgh and I had reached page 13, section 8, dealing with the background to the enterprise bargaining negotiations.

PN458

There Mr Greenhalgh identifies the formal commencement of negotiations about a new enterprise agreement in October 2003 and that letter is attached. In paragraph 8.3 he deals with the union's position as to one agreement, the original position of the rail entities for one agreement, and then following that, an exchange of correspondence and draft agreements and logs of claims identifying the matters in issue between the parties over a period of negotiations. Those various documents are annexed. Paragraph 8.6 he deals with the operation of RIC as a separate entity and again this was a matter discussed between the bench and I on Thursday.

PN459

In paragraph 8.8 he deals with the rail entities original intention and how that intention was affected by the development in relation to RIC, that is, of a separate board and separate CEO. In paragraph 8.9 he deals with the effects of Electrolux and the development of the deed, the concept of the deed poll. There and in the following paragraphs he deals with the discussions between the parties and the impact of Electrolux and the parties concern that a single non pertaining clause potentially renders any proposed agreement incapable of certification. It thus became necessary, as he notes in paragraph 8.12, to further negotiate the content of the proposed agreement. About the fifth line of that paragraph he observes:

PN460

It was agreed that all clauses that were capable of forming part of the certified agreement would remain in the proposed agreement whereas ...(reads)... content of the deed poll on 22 April 2005.

PN461

In paragraph 8.13 he again deals with exchange of correspondence between the parties as to the subject matters of negotiation, including important issues identified by the unions. In paragraph 8.15 onwards he deals with the assistance provided by the Commission through Commissioner Larkin to further the negotiations between the parties and expedite them. The rail entities produced a draft agreement so as to clearly identify their position at that point and that is annexed.

PN462

In or about December 2004 the rail entities and the rail unions reached agreement as to the core matters to be included in the proposed agreement. There however remained a debate between the parties as to the effect of Electrolux on certain clauses and there was no doubt that RailCorp was taking a conservative approach because of the potential impact. In any event, that extended negotiations dealing with those propositions. But on or about 23 March Mr Thistlethwaite on behalf of the unions in New South Wales and the rail unions sent a letter confirming that the draft agreement could be sent off for printing with a view to making it available to the employees.

PN463

There were some matters identified in the letter from Mr Thistlethwaite relating to infrastructure issues which have continued to be negotiated between the parties but have not adversely impacted the progress of core agreement. In section 9 he deals with the proposed agreement, noting that it's of course a multiple business agreement. In paragraph 9.2 he addresses the number of employees and lists a number of classifications employed by the rail entities. At the end of paragraph 9.2, about four lines from the end he says this:

PN464

The employees engaged by the rail agencies across these classifications form part of the highly integrated and ...(reads)... rail services in New South Wales.

PN465

In clause 9.2 he deals with the - - -

PN466

SENIOR DEPUTY PRESIDENT HARRISON: Mr Kite, in all of these documents that have been lodged where can I find a break up of the direct employees of each of the rail agencies, not those seconded, the direct employees as at the date of the application? Is that information nowhere to be found? I have looked for it.

PN467

MR KITE: We did an indication in Mr Greenghalgh's second affidavit. As I come to it your Honour will see that it deals with the approximate numbers in RailCorp. It doesn't offer numbers in the remaining employees in RIC and SRA, but it would at least give your Honour an idea of - - -

PN468

SENIOR DEPUTY PRESIDENT HARRISON: It's not adequate. I would have thought it's, particularly on some of the Full Bench decisions which of course are dealing with applications for multiple business agreements somewhat different to this, but one matter of relevance is the number of employees in each of the institutions proposed to be covered by the multiple business agreement and a consideration as to whether it's more appropriate that they be covered by a single business, I would have thought it information appropriate to volunteer. I would require not an estimate, an indication from a person who can indicate to me that had they been required to give evidence under oath what the answer is to my question.

PN469

MR KITE: If your Honour pleases, I will address that.

PN470

SENIOR DEPUTY PRESIDENT HARRISON: And to make it clear, not seconded employees. That is referred to some 1000 or seconded. That's the only reference I want, be they seconded or not, those who still remain as at the date of the application, employees of each of the three agencies.

PN471

MR KITE: Yes.

PN472

SENIOR DEPUTY PRESIDENT HARRISON: Thank you.

PN473

MR KITE: I'm just trying to remember whether in the break up of the ballot numbers, your Honour.

PN474

SENIOR DEPUTY PRESIDENT HARRISON: I had a look at that, Mr Kite, for myself. I don't have sufficient understanding by reference to each of the depots to be able to say with confidence I know with depot A, B or C must be in relation to a RIC employee for example. So I did try and assess the answer for myself and that's when I decided better it come from you.

PN475

MR KITE: If your Honour pleases. We will address that and provide that information.

PN476

SENIOR DEPUTY PRESIDENT HARRISON: Thank you.

PN477

MR KITE: In paragraph 9.3 Mr Greenhalgh notes the intended commencement date and the life, the nominal term of the agreement. Section 10 he deals with the various statutory requirements. He notes in principle agreement was reached in or about February 2005 having regard to the Electrolux issues and that was recorded in the What's News publication made known to employees. On or about
15 March the rail agencies prepared a final draft version of the agreement, confirmation, and that confirmation was received about 23 March and on that date RailCorp began arrangements for publication and circulation of the proposed agreement.

PN478

On or about 29 March the agreement was sent to the printers. On 4 April information regarding the proposed agreement was printed on the employee payslips. On or about that date the proposed agreement and some of the associated documentation was provided to a mail service. On or about 5 April the remainder of the associated document was provide to a mail service and on or about 7 April the proposed agreement and associated documentation were mailed out to employees by that service. On or about 8 April the mail service returns the copies to RailCorp.

PN479

On or about that date a copy of the proposed agreement and a list of the locations from employee information sessions in relation to the proposed agreement was posted on the intranet and on depot noticeboards. On or 20 April a revised copy of the locations for the information sessions was posted on the intranet and on depot noticeboards and on or about 22 April the rail unions confirmed their acceptance of the deed poll. On or about that date copies of the deed poll and the deed poll summary document were posted on the intranet and on noticeboards and additional copies were printed for distribution at the information sessions.

PN480

The information sessions began on or about 26 April 2005 and there's about 18 days after the posting and the intranet of the agreement and on or about 6 May 2005 the last employee information session was held. On or about 9 May the ballot papers were scrutinised and the tally confirmed by Mr French.

PN481

SENIOR DEPUTY PRESIDENT HARRISON: Just pause for a moment, would you, Mr Kite. Continue.

PN482

MR KITE: If your Honour pleases. And the agreement was signed on or about 27 May 2005. Of course the information provided by Mr French as to the result of the ballot is annexed the statutory declaration. That's the broad chronology. Mr Greenhalgh sets out in more detail the various steps and annexes the documentation referred to in that chronology.

PN483

SENIOR DEPUTY PRESIDENT HARRISON: At some stage are you going to return to the form of the ballot paper?

PN484

MR KITE: At least in part, your Honour. Is there any particular question
your Honour wants me to address?

PN485

Putting to one aside and not putting to one side at all, I will need to be assisted with the consideration as to whether that approach is sufficient to avoid the resolve dictated by Electrolux and Schefenacker that if an agreement when filed is not agreement all of which deal with matters that pertain if there's a valid application. Second, the employees in signing that ballot paper have relied or been led to rely I think in a number of respects upon something that they would believe we are going to undertake and namely, we are going to add to the agreement clauses contained in the rights deed, one assumes that we would add them because we form a view contrary to those formed by you that matters in fact do pertain rather than don't pertain.

PN486

I would not have thought that we would be ever doing that properly in compliance the requirements under the act, namely, add to an agreement a clause that wasn't in the agreement as voted upon. But in any event, additionally the employees are relying on us to delete certain clauses and any such deleted clause has to be included in the rights deed. That, I assume, has led employees to believe that we will go through the task of reading all of the time expired agreements and all of the agreements that are called up in those agreements and all of the agreements that are called up in those agreements, in those agreements. So that employees are confident if we certify their agreement we have undertaken the task which frankly I doubt should be the responsibility of the Commission.

PN487

In terms of the volume and magnitude of this task this is not a case of undertaken that which the Commission does day in, day out the perusal of agreements to satisfy for itself the matters pertained. They are comprehensive agreements and they do not invoke the drafting style that has now been used for many, many years of calling up other agreements.

PN488

MR KITE: Your Honour, I'm sorry to interrupt.

PN489

SENIOR DEPUTY PRESIDENT HARRISON: No, no, you haven't interrupted.

PN490

MR KITE: We have sought to address that concern in the supplementary affidavit of Mr Greenhalgh to some extent and also as to the operation of clause 9 in the written submissions that we made available to the Commission, during the course of the morning hopefully.

PN491

SENIOR DEPUTY PRESIDENT HARRISON: Mr Kite, I assume those instructing you have let you know that from time to time members of the panel have expressed a concern about the calling up by the parties of numerous agreements into the new agreement proposed for certification or presented for certification. To my knowledge each member of the panel who has ever had anything to do with these industries has expressed that concern. What has occurred up until a time prior to Electrolux is that I think it's fair to say the majority of members of the Commission, there were exceptions, but the majority of members of the Commission erred on the side of the argument was that it was a whole of agreement that had pertain and so therefore the assessment didn't require a clause by clause perusal of all of the matters in the agreement.

PN492

That avoided what may now be for the first time the necessity here to look at each clause. So obviously all of the agreements that are now currently expired were all presented to and certified well prior to Electrolux. However, not so much because of the outcome of Electrolux but more because of the concerns of each of the members of the panel from time to time about calling up all of these time expired agreements. This issue has for one or reason or another be raised for consideration I think to each of your clients. I do not know to this day what clauses in the time expired agreements your client is concerned are not called or what matters are not dealt with by the most recent agreement.

PN493

I do not know why there is seen from your client's point of view a need to continue to call up documents back as early as 1960 when I have myself raised a question identify a couple of the clauses for me, what are the clauses that you think it is only by that drafting method are surviving that necessitate you continuing to do that. If every time you brought in a new agreement it dealt with the same matters or substantially the same matters, why are you calling up the earlier agreements all the time? I do not recollect anybody told me what the clauses were. The same question will be directed to Mr Thistlethewaite. I certainly was told that it was erring on the side caution.

PN494

I was certainly told that it probably was not doing any particular harm or creating a difficulty so better it be done in case inadvertently it drop one off. I don't think for myself that's going to be good enough in the context of a multiple business agreement in the public interest.

PN495

MR KITE: As your Honour will see when we come to Mr Greenhalgh's affidavit, we have produced a schedule which has analysed the types of clauses that
your Honour refers to in respect of every agreement and refers to the various industrial instruments to which those clauses refer. Now, overwhelmingly those clauses use the phrase this agreement is to be read wholly in conjunction with, and then nominates a number of industrial instruments. We have proceeded in this case on the proposition that that clause does not move to incorporate the earlier agreements into the industrial instrument but provides a reference to those instruments for the purpose of interpretation.

PN496

So in the same way as an extrinsic aid would be used to interpret an act one may look at the history of prior legislation, one could look at the history of prior agreements and industrial instruments to see how certain phrases were interpreted, for example. We are not aware of any decision of the Commission or of a court that suggests that that construction is incorrect. We're aware of the concerns of the Commission of the constant referral to these past industrial instruments and the expressions of doubt as to the utility of that course, why those industrial instruments weren't terminated, although in some respects they would cease to have operation.

PN497

SENIOR DEPUTY PRESIDENT HARRISON: Well, the Act of course provides that an agreement is terminated when a new agreement is made, putting to one side the peculiarities of a multiple business agreement because there's another section. But thus far there's been a system whereby not a system of the Act provides that an agreement ceases to remain in operation when a new agreement is made. I had clearly understood that it is because of the consequences of that section that parties in this industry had used the calling up provision so as to not be visited where the consequences of the section, namely, the time expired agreement is set aside, it ceases. But I understand what you say your instructions are as to how your clients thought the words were to operate.

PN498

MR KITE: Yes, and indeed - - -

PN499

SENIOR DEPUTY PRESIDENT HARRISON: And I know that Mr Greenhalgh in his affidavit has addressed the reasons why this form of drafting has been used and I had rather thought he went further than what you're saying the reason for it is now and he had gone further and said it is so as to call up all of the provisions of the time expired agreement. I know marked it. Maybe now I should find it to make sure I haven't been reading too much into - is it going to be suitable to come back to this? It's for myself a very important issue and I want to identify precisely what I've marked in the - - -

PN500

MR KITE: Your Honour might find that as we progress the affidavit.

PN501

SENIOR DEPUTY PRESIDENT HARRISON: Indeed. I assume logically that's where it is to be found. I can't think of what other documents it might be found in. I wouldn't have thought it was necessarily in the original statutory declaration in support of the application, but that's the other possibility.

PN502

MR KITE: We'll see if we can find it.

PN503

SENIOR DEPUTY PRESIDENT HARRISON: We'll see, yes, and I do know that if we haven't reached it that I have marked it, so with a little time I'll identify it. Mr Kite.

PN504

MR KITE: If your Honour pleases. Mr Greenhalgh has just pointed to a clause at the moment.

PN505

SENIOR DEPUTY PRESIDENT HARRISON: In the affidavit that you're addressing now?

PN506

MR KITE: Yes. In any event we will come to it and your Honour might let me know if that becomes apparent.

PN507

COMMISSIONER LARKIN: Mr Kite, there is from my understanding - no, just before you on, just on the point that her Honour raised and please don't ask me to pinpoint the agreement or the time, but I must say being a member of the panel it was also my understanding that there was a concern that there were provisions there that may not be included in the particular agreement that was before the Commission and hence there was a concern of losing those provisions. It was my understanding some of them went to allowances and I can't identify the allowance. So I hear your submission and that from my perspective was part of he rationale for continuing these agreements and not terminating them. But it was also my understanding that there were particular provisions there and possibly allowances that may still apply.

PN508

MR KITE: Perhaps I should say at this stage that there's a second step in all of this as well which may give the Commission some additional comfort. The Commission is aware that the schedule purports to identify particular clauses in the agreements that are called up into this proposed agreement and as we understand it with one exception. The schedule in the agreement reflects all current agreements - I need to go back a step. All current agreements that apply to the rail agencies directly. There are approximately 10 agreements that apply to special projects which essentially don't relate to employees of the rail entities but to employees engaged on that project usually by a special purpose project vehicle when another corporation is established and that corporation employs people to work on that project.

PN509

Some of the rail entities are participants in the joint venture arrangement but they are not the employers. So we haven't sought to touch those and we deal with those in Mr Greenhalgh's supplementary affidavit. There are about 10 of them. There is one agreement that was inadvertently left off the schedule. We have amended the schedule in the termination application to include that agreement. This is a point that your Honour Senior Deputy President Harrison raised the other day. We haven't amended the schedule to the agreement to include that agreement. The parties have agreed to incorporate any clauses that the unions wish to preserve from that agreement in the deed poll, so there is no issue arising that the agreement that went to the employees is different.

PN510

SENIOR DEPUTY PRESIDENT HARRISON: I understand.

PN511

MR KITE: But we propose to terminate the other agreement in any event.

PN512

SENIOR DEPUTY PRESIDENT HARRISON: I understand.

PN513

MR KITE: So in that sense the schedules in the two applications differ slightly. But those exceptions aside, schedule B identifies all the extant agreements. The parties have undertaken an analysis of all of those agreements and sought to identify clauses which do not pertain that may be included in those agreements and in the second part of schedule B have specifically listed those clauses as excluded clauses from the certified agreement. They have been included in the deed poll where the unions have sought to preserve them. So the exercise has been undertaken by the parties and there is a second part, and this is a question raised by Commissioner Larkin on Thursday, where certain subject matters are identified for more abundant caution as excluded subject matters.

PN514

Again these matters are dealt with in our written submissions and in
Mr Greenhalgh's affidavit. In the course of undertaking that analysis of all of those agreements it was identified that a number of clauses dealing with certain subject matters had a common style. That is, they were repeated in a variety of agreements and they were all clearly in the same sort of form. So if they were identified as a not pertaining clause in the specific analysis, that subject matter was included in embracing list in case by error one of the specific clauses wasn't identified in the specific clauses list, so it's a catch all but it's not, we submit, simply a matter because a clause has union delegates as its subject matter that it may or may not pertain.

PN515

The reason that subject matter is identified is because in all of the agreements there is this common form of union delegate clause which the parties have identified under the current understanding of the law as a clause which would not pass the requisite test. So that subject matter has been matter has been included as a catch all saving as well as wherever it could be identified, the specific clause dealing with that subject matter in the first part of the section. Does that make sense? I see, Commissioner, you're looking at me a little perplexed.

PN516

COMMISSIONER LARKIN: No, I'm very attentive to your submission,
Mr Kite.

PN517

MR KITE: We will come to Mr Greenhalgh's supplementary affidavit and with the written submissions that we have done hopefully it will become a little clearer with what the parties intended and how they have undertaken this exercise of analysis.

PN518

SENIOR DEPUTY PRESIDENT HARRISON: Would you just pause for a moment? Sorry.

PN519

MR KITE: In a sense the question raised by your Honour, the parties are cognisant that this is a huge task and not something that they would simply put before the Commission without having made the effort themselves. They have made the effort to identify the clauses which can be said not to pertain and those which do pertain and to separate them. The purpose of all calling all of these instruments up in the one place is so that at least everything is identified that is currently active as a certified instrument and hopefully progressively all of those terms will be rationalised and/or deleted so that those agreements will eventually become irrelevant, because there will be a single industrial instrument prescribing all of those conditions. There will be now because the only reason those clauses will have effect is because of the certification of this agreement.

PN520

COMMISSIONER LARKIN: And the rationale for retaining those provisions, Mr Kite, your submission is that it's for the understanding and interpretation of the current agreement?

PN521

MR KITE: In this agreement?

PN522

COMMISSIONER LARKIN: The agreement that's before the Full Bench.

PN523

MR KITE: No, it takes a different effect in this agreement. This is the first time that the words have been used purporting to incorporate the terms of past agreements.

PN524

COMMISSIONER LARKIN: Read in conjunction.

PN525

MR KITE: Yes. Previously and had read in conjunction with. It was my submission and my understanding that that was intended to be a means by which the parties would interpret the operation of the current agreement. Now, sometimes agreements were given - I should say, sometimes agreements were given the same name save for the year, so the State Rail Agreement 1992, State Rail Agreement 1994, State Rail Agreement 1996. Now, my instructions are those agreements dealt with different subject matters in many ways and so the 1992 agreement continued to operate notwithstanding there was a 1994 agreement with a similar name between the parties because it dealt with different subject matters.

PN526

So I think the statutory position of another agreement ceasing operation because a new agreement was made wasn't always perceived to have effect. Your Honour did raise, your Honour Senior Deputy President, or it may have been the Commission raising the suggestion that some clauses were preserved because they weren't dealt with in the new agreement. I think that may be the understanding of the parties because the subsequent agreement deals with subject matters (a) to (d) and a prior agreement dealt with subject matters (e) to (f). The making of the (a) to (d) wouldn't override the (e) to (f) clauses, so that they continued to run in parallel even if they had substantially similar names.

PN527

COMMISSIONER LARKIN: The particular discussion I had on that occasion, no-one could identify what it was that it will lose.

PN528

MR KITE: It's made very clear to me on instructions that the reason this approach was taken was often more abundant caution and a real conservative approach to the position. I should say this in answer to an earlier point raised by your Honour the Presiding member, that is, none of the parties asked the Commission in this case to add any clauses to the agreement. Notwithstanding the terms the parties remain of the view that their analysis of what pertains and what doesn't pertain in those clauses remains appropriate at the present time.

PN529

I don't want to suggest by that that the unions are in any sense estopped from arguing in an appropriate place or an appropriate time that a clause of a particular type is one that pertains, but accepted the conservative approach for the purpose of certification only and none of the parties, as I am presently instructed, would ask the Commission to move anything from the deed to the agreement under clause 9.

PN530

SENIOR DEPUTY PRESIDENT HARRISON: May I use an actual agreement and a number of its predecessors to better understand about how clause 9 is to operate and the agreement I want to use is the State Rail Authority of New South Wales Enterprise Agreement 2002, tab 37 in folder 2 of 4 and tab 42 in volume 3 of 4, the State Rail Authority of New South Wales Enterprise Agreement 1992, the beginning and the end. In the 2002 agreement, as had been the case in the previous agreements, a clause, in this case clause 2.5, had the preamble in it, as you have mentioned earlier:

PN531

This agreement is to be read and interpreted in conjunction with the following industrial agreements.

PN532

And there are listed a number of agreements but relevant to this question is agreement 2.5.38, the State Rail Authority Enterprise Agreement 1992.

PN533

MR KITE: Sorry, your Honour, could I just ask your Honour to identify the clause that your Honour just read?

PN534

SENIOR DEPUTY PRESIDENT HARRISON: 2.5.38.

PN535

MR KITE: Thank you, your Honour.

PN536

SENIOR DEPUTY PRESIDENT HARRISON: That calls up this 1992 agreement. I'm the only one who is this volume 3 I'm afraid. Mr Kite, could you confirm with your instructing solicitors that three lots of four volumes were filed?

PN537

MR KITE: I'm instructed only one lot of four volumes were filed.

PN538

SENIOR DEPUTY PRESIDENT HARRISON: Well, I did request that the other two be attended to and filed as soon as possible. I think I made that request at about 5.30 Friday night. Mr Harmer, it was from a person indicating they were ringing from your firm, it was not you. I took the call myself in chambers at that time.

PN539

MR HARMER: Yes, I will follow that up.

PN540

SENIOR DEPUTY PRESIDENT HARRISON: Thank you. But the immediate problem I now have is that this is all very interesting to me and you and my colleagues on the bench so I will have to come back.

PN541

MR KITE: It may be appropriate as we can go through and the way in which this is dealt with in the supplementary - - -

PN542

SENIOR DEPUTY PRESIDENT HARRISON: Indeed, yes.

PN543

MR KITE: And we might be able to achieve that by then.

PN544

SENIOR DEPUTY PRESIDENT HARRISON: Thank you. I am so sorry, my associate tells me I have wrongly accused someone from your firm, Mr Harmer, about that request I made. She reminds me that request that I made was about - yes, that may well have been about Mr Greenhalgh's affidavit and that large volume that I received late Friday. So I apologise, I may well have been that. I had thought it was about these, but yes, I apologise if I made that comment and the transcript in that respect should be revisited and clarified in light of this.

PN545

MR HARMER: It's not an issue, your Honour. We are getting additional
copies - - -

PN546

SENIOR DEPUTY PRESIDENT HARRISON: Thank you.

PN547

MR KITE: If your Honour pleases.

PN548

COMMISSIONER LARKIN: There's a lot of paper up here, Mr Kite. We are trying to make sure that we have got the right pieces.

PN549

MR KITE: I can tell the Commission there's going be even more.

PN550

SENIOR DEPUTY PRESIDENT HARRISON: So we will some time be receiving two extra sets of the volumes that have in them the EBAs to be terminated?

PN551

MR KITE: The agreements actually referred to in the schedule.

PN552

SENIOR DEPUTY PRESIDENT HARRISON: Thank you.

PN553

SENIOR DEPUTY PRESIDENT DUNCAN: Higher education had a reputation for paper, Mr Kite, but it's in danger of falling.

PN554

MR KITE: It is indeed. Well, at least being challenged. I was dealing with section 10 of Mr Greenhalgh's affidavit.

PN555

SENIOR DEPUTY PRESIDENT HARRISON: I know it would be a very difficult exercise to consolidate all of these EBAs. I really, really don't understand why over the last few years it has not been done given that that and time and time and time again it was part of the agreement certified that it would be done. I don't under estimate the task, it is huge, but why it was not done I do not know. Given that so far all we have been able to identify is the possibility that some allowances might inadvertently have been lost if we didn't continue to call up all the time it expired, I still don't know what other clause there could possibly be. I am revisiting what I have said on earlier occasions, Mr Kite. It is not productive for me to say it again.

PN556

MR KITE: I can only say, your Honour, that at least step 1 has now been taken with bringing them all into one instrument and seeking to terminate all of the other ones.

PN557

SENIOR DEPUTY PRESIDENT HARRISON: Yes.

PN558

MR KITE: In section 10.4 of Mr Greenhalgh's first affidavit he notes that the materials provided to employee included a plain English summary and that consistent with custom and practice in relation to the ballot process, SRA and RIC, it was necessary for employees to attend one of the information sessions in order to cast a vote on the agreement. A copy of that summary is at annexure 21. Interpreters were also made available on request by employees and
Mr Greenhalgh sets out a summary of the matters dealt with in the annexure.

PN559

In paragraph 10.5 he notes that on 22 April a number of documents were posted on the intranet including a three page clarification of the expense provisions, annexure 22. If I go to that very briefly. This schedule, as it was attached to the agreement circulated, contained some mathematical errors. On page 61, the Commission will see in the annexure to the top of the page the page numbers 61 and then under the allowance brief description, the meal allowance salaried officer returning him, RIC, the third last allowance on the page, the changes from 1 April 2004 through until 1 April 2007 had not been included. The calculation had not been done in accordance with the substantive clause of the agreement.

PN560

There is a substantive clause indicating that allowances will be adjusted by the amounts specified in the agreement. Those calculations have been inadvertently omitted. Similarly, the calculations for meal allowance, wages employees returning home after normal start, RIC, the last one, the same calculations were excluded. On the second page of the annexure, calculations in relation to 1 April 2005, 2006 and 2007 were erroneous. That is, they haven't been increased by their 4 per cent accurately, and on the third page the allowance, quarries, coal, cement, SOA, in the third last, again the calculations from 1 April 2004 through to 1 April 2007 have not been included.

PN561

Those matters were explained to the employees at the information sessions and copies of the amended schedules made available with the correct calculations. Also posted on the intranet at that time was a document summarising the deed poll and the deed itself. Those two documents are annexed. I don't mean to be discourteous in skipping over these instruments but having regard to the questions that have been coming from the bench I'm trying to concentrate on what seemed to be the more pertinent documents.

PN562

SENIOR DEPUTY PRESIDENT HARRISON: Well, the deed poll itself is not a matter that necessarily concerns us. It's the EBA.

PN563

MR KITE: It's a background only to that.

PN564

SENIOR DEPUTY PRESIDENT HARRISON: Indeed, yes.

PN565

MR KITE: And the assessment of public interest considerations and what the employees understood.

PN566

SENIOR DEPUTY PRESIDENT HARRISON: Indeed. And it's that last point that you made. It's a concern to us in the context of understanding how the EBA would work, but the existence of the deed, its content and how it's to work is not a matter that should - - -

PN567

MR KITE: Again is not authority at all from what the Commission does.

PN568

SENIOR DEPUTY PRESIDENT HARRISON: Indeed.

PN569

MR KITE: It's a matter entirely dependent upon the common law for its force and effect. In 106 Mr Greenhalgh on page 22 of his affidavit deals with the information sessions, the desire to hold as many as possible. In 10.7 he deals with the attendance and participation by a number of unions in the sessions and from the second sentence I quote:

PN570

Employees were encouraged to attend sessions by advertising on the intranet, in mail outs, on pay slips and depot noticeboards and employees were ...(reads)... were not compulsory.

PN571

He then deals with the assistance by union representatives during the information sessions and the PowerPoint presentation which was used as a basis for those information sessions. Perhaps I should just go to that briefly. The second page of that is headed Enterprise Agreement Status and these are of course dot points, but it notes that the current agreements expired at the end of March 2004. The new agreement was designed to take effect from the date of certification and to operate until 31 March 2008. The existing agreements would be rolled up into the new enterprise agreement. If there are any inconsistencies the new core agreement would apply. The new agreement does not reduce any of the existing entitlements or conditions. The agreement provides some additional principles and processes that will apply to staff.

PN572

Then on the next page the process. It's pointed out that it will be a multiple enterprise agreement to facilitate the transition of staff to RailCorp to ensure that all employees are covered by the agreement. Reference to the process of certification by the Full Bench and the need to pass the public interest test and then a reference to the Electrolux decision. I point out that matters are restricted to those that directly impact on employer/employee relationship, the examples of those that can't be included are excluded. Point out if such clauses were included and they were found not to pertain the whole process would have to be repeated, and the agreement of the rail entities to include any provisions previously included in the RIC agreements that fall outside the employer/employee relationship in a separate legal enforceable called the deed poll and there's some comment on the ballot paper itself.

PN573

COMMISSIONER LARKIN: Mr Kite, sorry, I didn't mean to interrupt you. Just back to that page 3, the process, the multi business agreement, the slide reads in part:

PN574

To facilitate the transition of staff to RailCorp and ensure all employees are covered by the agreement.

PN575

Correct me if I'm wrong, the RIC employees that are seconded to ARTC, is it envisaged that they are to be RailCorp employees?

PN576

MR KITE: Mr Greenhalgh deals with this in his supplementary affidavit in more detail, but ARTC employees - sorry, secondees to the ARTC, at the end of the secondment period will come back to their relevant employer. So if they went from the SRA to ARTC they will come back to SRA or come to RIC, or come back to RailCorp.

PN577

COMMISSIONER LARKIN: Well, I don't think there's RailCorp. I think it went the other way.

PN578

MR KITE: They come back to their original employing agency. If those employees aren't required by RailCorp they could be then vested to RailCorp from the SRA or from RIC, or they could be offered redeployment opportunities or voluntary redundancy. But they will not come back directly to RailCorp, they will come back to their employing rail entity first. They may then be vested to RailCorp.

PN579

COMMISSIONER LARKIN: So is this the submission, there's a limited period of time that RIC secondees to ARTC will be seconded?

PN580

MR KITE: There is a time limit at the moment on the secondment agreement, yes.

PN581

COMMISSIONER LARKIN: What's the time limit, do you know?

PN582

MR GREENHALGH: June 2008.

PN583

COMMISSIONER LARKIN: June 2008. I heard the - - -

PN584

MR KITE: Mr Greenhalgh?

PN585

COMMISSIONER LARKIN: Yes.

PN586

MR KITE: Yes. It's dealt with in his supplementary affidavit.

PN587

COMMISSIONER LARKIN: It's a shame I didn't read that over the weekend. It might have avoided some questions. So what did people understand, the people that voted for the agreement, what did they understand that to mean, the transition of staff to RailCorp?

PN588

MR KITE: That there are people currently in RIC and SRA, apart from the secondees, who are scheduled to vest to RailCorp in the future.

PN589

COMMISSIONER LARKIN: Yes.

PN590

MR KITE: So that's specifically identifying those people and saying it was desirable to have one agreement specifying terms and conditions that facilitate those transitions. There have also been transitions already from RIC and SRA, as the Commission's - - -

PN591

COMMISSIONER LARKIN: Yes.

PN592

MR KITE: But there will be future ones with some certainty due to occur by the end of this month.

PN593

COMMISSIONER LARKIN: So is it envisaged that RIC will eventually close?

PN594

MR KITE: Well, at the moment it's envisaged that RIC will continue to manage the ARTC lease which has a life of 60 years.

PN595

COMMISSIONER LARKIN: So does RIC has a life of 60 years, Mr Kite?

PN596

MR KITE: At the moment it would seem that way, yes, but it's not certain. RICs task is to manage that ARTC lease principally. There are other functions but that's the main one.

PN597

COMMISSIONER LARKIN: So what did RIC employees, the secondee, because the RIC secondee employees to ARTC, they voted on this agreement?

PN598

MR KITE: Yes.

PN599

COMMISSIONER LARKIN: So what was their understanding of that, that they over time would come into RailCorp, or they would in six months, or 12 months, or 60 years?

PN600

MR KITE: Not necessarily. What they knew was, this agreement would govern their terms and conditions while on secondment and when they return and if they were to be transitioned this agreement would facilitate addressing across to RailCorp.

PN601

COMMISSIONER LARKIN: Their transition.

PN602

MR KITE: But not necessarily that they would be vested to RailCorp.

PN603

SENIOR DEPUTY PRESIDENT HARRISON: This term vested is used frequently.

PN604

MR KITE: It's used in the legislation, your Honour.

PN605

SENIOR DEPUTY PRESIDENT HARRISON: That's what I was about to raise. Certainly the legislation uses the term transfers and minister's entitlements, this is schedule 6, at least in schedul6. I just do not know what has occurred since that legislation that will give rise to it not coming - any particular schedules not being proclaimed. I don't know. I suspect there's some of them that have not come into operation because if they have they seem on the face of them to be inconsistent with the decision made about RailCorp - the original understanding as to RIC being part of the RailCorp structure.

PN606

MR KITE: Yes.

PN607

SENIOR DEPUTY PRESIDENT HARRISON: I can't make sense of it all.

PN608

MR KITE: I think that's right, your Honour. Some of them will not come into effect.

PN609

SENIOR DEPUTY PRESIDENT HARRISON: Yes. I assume that's right because otherwise that decision seems to cut across the legislation and I can't imagine that would have occurred.

PN610

MR KITE: If it's a matter that troubles your Honour I will happily get a list prepared of commencement dates of the schedules and those which haven't commenced.

PN611

SENIOR DEPUTY PRESIDENT HARRISON: I'll stay with my earlier troubles and not try and find any more. But as I understand the submissions, the answer to Commissioner Larkin, one thing is clear, at least until June 2008 there will be employees of RIC and SRA?

PN612

MR KITE: Yes.

PN613

SENIOR DEPUTY PRESIDENT HARRISON: Because the secondment doesn't come to an end until then?

PN614

MR KITE: Yes.

PN615

SENIOR DEPUTY PRESIDENT HARRISON: Yes, I understand.

PN616

MR KITE: But assuming no other legislative step is taken in the intervening period.

PN617

SENIOR DEPUTY PRESIDENT HARRISON: Yes.

PN618

MR KITE: The legislation has been rapid and frequent in this field in the last few years.

PN619

SENIOR DEPUTY PRESIDENT DUNCAN: Even without panel knowledge of that fact the executive summary of the waterfall document has a helpful - - -

PN620

MR KITE: Yes. I had intended to take the Commission to that.

PN621

SENIOR DEPUTY PRESIDENT DUNCAN: When you get there.

PN622

MR KITE: Your Honour is already ahead of me on that one, but it does point out that rapid development and indeed it's in some senses reverting, so there is a - because of competition policy, a disaggregation and then a re-aggregation in part of some of those things.

PN623

SENIOR DEPUTY PRESIDENT DUNCAN: It certainly establishes your point about rapid change.

PN624

MR KITE: Yes. And indeed effectively - - -

PN625

SENIOR DEPUTY PRESIDENT HARRISON: And it certainly completely justifies my understanding of the concerns the unions have about protecting the terms and conditions of their employees. Of that I have no doubt at all. Whether it be done by a multi business agreement or not is another issue, but it's certainly - well, I guess Mr Thistlethwaite now knows that at least that issue he does not need to develop.

PN626

MR KITE: I'm sure he's grateful for that indication, your Honour.

PN627

SENIOR DEPUTY PRESIDENT HARRISON: But yes, as I say - right. Which of course relates to the completely understandable clauses in the 2005 agreement relating to the consequences if employees are undertaking medical examinations, finding themselves in a difficult position in not being able to pursue their chosen career, grandfathering, entirely understandable, industrial issues. Not surprising at all to be found it in, well, I will call it a log of claims but in the context of an agreement and to be incorporated in an agreement, single business or multi business.

PN628

MR KITE: I have reached the fourth page of the PowerPoint presentation. That deals with the structure of the agreement and the reference to functional agreements and we will come back to that, I appreciate that's a question that troubles the bench, and change agreements. Then on the next page, increases in rate of pay, general increase of 16 per cent over four years. Under the heading Functional Capacity for Further Productivity Based Self Funding Increases, no increases in productivity not achieving or in achieved, payable only on delivery. Then increases in allowances will now rise by the same percentage as the wage increase from the date of certification. A number of incorrect figures have included at pages 61, 65 and 68 and these will be adjusted prior submission to the AIRC.

PN629

The amended pages were handed out in some cases, not in all cases, but they were published on the intranet. The dispute settlement procedure is then dealt with and a number of the various clauses are dealt with in a little more detail.

PN630

SENIOR DEPUTY PRESIDENT HARRISON: What page are you on now? I've got tab 25.

PN631

MR KITE: Page 6.

PN632

SENIOR DEPUTY PRESIDENT HARRISON: 6, yes, thank you.

PN633

MR KITE: It starts the consideration of the detailed clauses. I have intended to go to those in any great length, unless the Commission wants me to.

PN634

SENIOR DEPUTY PRESIDENT HARRISON: I make an observation, occupational health and safety did not feature large in this briefing, not as large as it now features here as a justification for a multiple business agreement.

PN635

SENIOR DEPUTY PRESIDENT HARRISON: It doesn't even get a mention in the dispute settlement provision slide.

PN636

MR KITE: Mr Greenhalgh instructs me that he covered it in his information session. No doubt he can convert that into evidence if the Commission wishes.

PN637

SENIOR DEPUTY PRESIDENT HARRISON: Well, it's just an observation I make.

PN638

MR KITE: Yes. But could I just say consistent with the discussion we had with the bench last Thursday, in many senses what's done here is declaratory of duties and roles but also, as the Commission will see, it's a matter of reinforcing those responsibilities that all employers and employees bear in relation to safety and the waterfall inquiry points that up, particularly in sections relating to safety culture, that although occupational health and safety was regarded seriously there was a real flaw in the safety culture, including these clauses dealing with OH & S in a common agreement is one way of reinforcing the gaps in that safety culture, as you will see when we come to that document.

PN639

I suppose it's also tailored to the audience. You don't need to convince the employees that it's necessary to deal with the occupational health and safety in an agreement.

PN640

SENIOR DEPUTY PRESIDENT HARRISON: You probably need to convince us though that it's the predominant reason that you require a multiple business.

PN641

MR KITE: It's a reason.

PN642

SENIOR DEPUTY PRESIDENT HARRISON: It's a reason and a very important one.

PN643

MR KITE: Yes.

PN644

SENIOR DEPUTY PRESIDENT HARRISON: It looms large in your justification of a multiple business and it would loom far less large in the briefings to employees about what's in it for them in 2005 agreement.

PN645

MR KITE: Equally, your Honour, what looms large is the fact that all of these entities are under the control of the one minister and they operate in an integrated way. They have staff who are moving from one entity to the other and all of those factors we say go to the public interest and occupational health and safety is undoubtedly an important one but it doesn't stand alone in any sense, as you will see as we finish Mr Greenhalgh's affidavit. It goes on to page 23 and deals with the deed poll in clause 10.12 and then at 10.13 notes that at the conclusion of each information session RailCorp officers retired to allow further discussions from representatives of employees, 91 information sessions were held, 15,652 employees affected, approximately 5,290 attended the information sessions.

PN646

He gives some details then of who conducted the various sessions and then in 10.16 the vote running from 26 April 2005 to 6 May 2005 and the scrutineering of those votes to ensure the accuracy of the voting and in 10.17 the role of
Mr French and the fact that 33.8 per cent of eligible voters cast a vote and 77.5 per cent voting in favour.

PN647

COMMISSIONER LARKIN: There's 15,500 employees and only just over 5000 voted, Mr Kite.

PN648

MR KITE: I'm instructed, Commissioner, that's a very good roll up, twice the number of the previous SRA agreement.

PN649

COMMISSIONER LARKIN: I mustn't have asked that question if I certified it then, Mr Kite. I normally do. Yes.

PN650

MR KITE: Commissioner Jones did it.

PN651

COMMISSIONER LARKIN: Sorry?

PN652

MR KITE: Mr Greenhalgh tells me Commissioner Jones certified that agreement.

PN653

COMMISSIONER LARKIN: Well, he would have asked the question then I'm sure.

PN654

MR KITE: I think the SRA agreement it's about 16.6 per cent voted and on this occasion 33 per cent of employees attending the vote. It's not compulsory to vote and the important thing is that they have a genuine opportunity to vote and they in our respectful submission did and had all the information that they could possibly want in relation to that vote. In paragraph 10.18 he returns to the infrastructure issues being dealt with or being negotiated between the ETU and the AWU and rail entities in parallel. Then the public interests considerations and a number are listed, including - - -

PN655

SENIOR DEPUTY PRESIDENT HARRISON: Well, these are submissions, aren't they?

PN656

MR KITE: Effectively, your Honour.

PN657

SENIOR DEPUTY PRESIDENT HARRISON: Yes, all right. Well, you can adopt them in your final submissions or now.

PN658

MR KITE: It saves a little time, your Honour, I can adopt them now.

PN659

SENIOR DEPUTY PRESIDENT HARRISON: Yes. But they're submissions, I don't take them to be evidence before this Full Bench.

PN660

MR KITE: We try to pull together all of the factors upon which we rely and of course the material is found in various places in support of them.

PN661

SENIOR DEPUTY PRESIDENT HARRISON: Yes.

PN662

MR KITE: But as you can see, referrable to propositions - the question
your Honour asked me a few moments ago about the importance of occupational health and safety which are one of a number of factors and it's the totality of the factors we submit and it's of importance. He deals in a little more detail from paragraph 11.3 onwards with the consolidation of the myriad of underlying industrial instruments. This may be the area in which your Honour the Presiding member was concerned that something seemed to go further than my answer earlier.

PN663

SENIOR DEPUTY PRESIDENT HARRISON: Yes. Look, in fairness there's two aspects, there's what was understood in the past by the use of the terms this agreement will be read in conjunction with all of those called up, that's one thing, the issue here is really what's understood now by the words calling it up and I had understood it certainly goes further than just read in conjunction. It calls them up.

PN664

MR KITE: It does indeed, your Honour. That's the intention of the parties.

PN665

SENIOR DEPUTY PRESIDENT HARRISON: Yes, I understand that. With the exceptions that we well understand.

PN666

MR KITE: Yes, indeed. And the motivation for that is dealt with in paragraph 11.4. He says:

PN667

By carrying forward the terms of the scheduled former instruments the rail agencies have attempted to create ...(reads)... following the agreement of a valid majority of affected employees.

PN668

I just pause there and say this is further dealt with in light of the questions from the bench on Thursday in the supplementary affidavit -

PN669

Clause 13.3 of the proposed agreement provides that any agreements ...(reads)... the rail agencies have agreed to prepare a hand book within nine months of the certification.

PN670

In paragraph 11.12:

PN671

The consolidation process facilitated by the proposed agreement is one of the principal ...(reads)... minimise any future disruption to the rail services.

PN672

Without overlooking the importance of the next sentence, I won't read it at the moment, it then deals with the vesting and again this is dealt with in the supplementary affidavit in a little more detail. This section highlights areas that are designed to provide reassurance to employees who are vested to RailCorp of the maintenance of their rates and conditions and the absence of any disadvantage arising by reason of vesting. Again 11.16 and 11.17 might be thought to be in the form of or more in the style of submission and I adopt them as such, as indeed is 11.18. In 11.19 he deals with the competency based classification structures and he notes:

PN673

The rail agencies are engaged in the cooperative provisions of rail services in New South Wales ...(reads)... during the life of the proposed agreement.

PN674

He then refers to clause 9.8 which requires the development of those structures for clerical, administrative, technical and professional employees within three months of certification and again something more is said about commitments in the supplementary affidavit. In 11.21 he notes the dual advantages of career paths and presentation or transfer of relevant employees between the rail agencies arising from a similar agreement and revised classification structures. In 11.22 and following he deals with the dispute settlement provisions and the revision of those are particularly in the light of criticisms which have fallen from members of the Commission over the years. An example of that is included in annexure 33, Senior Deputy President Cartwright's concerns about the old dispute settlement procedure. It's been revised now so as to overcome those matters.

PN675

He then deals in section 12 with some further matters concerning the AWU and the ETU and a number of documents are annexed consistent with an agreement to place those documents before the Commissioner during the certification process. Officers of those unions may have something further to say about those matters but I don't need to develop them any further. Can I come then to the - - -

PN676

SENIOR DEPUTY PRESIDENT HARRISON: May I raise a question about clause 8, the dispute settlement procedure. Such a procedure is one of the type referred to in section 170LT and LW.

PN677

MR KITE: LW.

PN678

SENIOR DEPUTY PRESIDENT HARRISON: Yes, I will go to LT first only because it's first in the Act but it is probably correct to read them the other way round. LT(8) must include procedures for preventing and settling disputes about matters arising under the agreement and LW, those procedures for preventing and settling disputes may empower the Commission to settle disputes about the application of the agreement. Here the parties have agreed to and empowers the Commission to deal with grievances, claims, disputes or problems arising between them about, amongst other matters, safety, demarcation and matters arising from decisions of unions in New South Wales or the ACTU. Does that go further than 170LT and LW?

PN679

MR KITE: Can I say in our written submission we address that topic.

PN680

SENIOR DEPUTY PRESIDENT HARRISON: Good.

PN681

MR KITE: That was a matter raised I think by Commissioner Larkin on Thursday.

PN682

COMMISSIONER LARKIN: And also I raised 8.9 I think, the safety issue.

PN683

MR KITE: Yes, and we have addressed that as well, so I will come to deal with those points in the written submission that we hand up. I have been handed some instructions, your Honour, as to the numbers of employees in the various rail agencies as at the date of the ballot.

PN684

SENIOR DEPUTY PRESIDENT HARRISON: Yes, thank you.

PN685

MR KITE: There were 2551 in the SRA, 1200 in RIC, 10,856 in RailCorp and at that time 1111 seconded from SRA and RIC to the ARTC, for a total of 15,717.

PN686

SENIOR DEPUTY PRESIDENT HARRISON: I see. Of the 1111 do you know how many were SRA and how many were RIC?

PN687

MR KITE: Not at the moment, your Honour.

PN688

SENIOR DEPUTY PRESIDENT HARRISON: Could I make any assumption about it 50/50, would that be reliable?

PN689

MR KITE: Perhaps I do know, your Honour. There's a schedule in the supplementary affidavit indeed.

PN690

SENIOR DEPUTY PRESIDENT HARRISON: Very good, thank you. Is this a convenient time to take a short break?

PN691

MR KITE: Yes, your Honour.

PN692

SENIOR DEPUTY PRESIDENT HARRISON: We will do that.

<SHORT ADJOURNMENT [11.09AM]
<RESUMED [11.32AM]

PN693

SENIOR DEPUTY PRESIDENT HARRISON: Mr Kite.

PN694

MR KITE: If the Commission pleases. Could I hand up the original and two copies of the supplementary affidavit of Gregory Robert Greenhalgh.

PN695

SENIOR DEPUTY PRESIDENT HARRISON: I will mark this, Mr Kite.

PN696

MR KITE: If your Honour pleases.

EXHIBIT #RAIL AGENCIES 4 SUPPLEMENTARY AFFIDAVIT OF MR GREENHALGH, DATED 14/06/2005 AND FIVE ANNEXURES

PN697

MR KITE: If the Commission pleases. Notwithstanding the bulk of the annexures I hope we can deal with them fairly brief. Again Mr Greenhalgh has adopted the process of setting out the contents of the affidavit in paragraph 11.1 essentially to deal with the various questions raised by members of the bench on Thursday and he points out in the introduction in paragraph 2.1 the purpose is to address those matters. In section 3 he deals with rosters and clause 12.1(iii) I think a question raised by Commissioner Larkin, or it may have been Senior Deputy President Harrison as to the rosters for train crews documents referred to.

PN698

Mr Greenhalgh identifies those documents, the four of them and they are annexed as annexure1. In paragraph 3.2 however he says that it was not the intention of the parties to incorporate these documents into the proposed agreement.

PN699

SENIOR DEPUTY PRESIDENT HARRISON: Sorry, 3.2.

PN700

MR KITE: Nevertheless he has annexed the various documents to his affidavit and I say that we will deal with those documents in our written submission which we will hand up next. Similarly clause 30 of the proposed agreement deals with leave provisions. Members of the Commission might recall it does so by way of the number of headings relating to leave. He says:

PN701

I have made inquiries and been informed that the policies referred to in this clause are contained in the human resources policies manuals for both SRA and RIC. Chapter F of the SRA manual contains the following policies.

PN702

And he then lists them. In paragraph 4.2:

PN703

The RIC leave policy covers similar matters. Annexed hereto and marked annexure 2 are extracts from the HR policy manuals in relation to leave for both RIC and SRA.

PN704

And again pausing there, we deal with this matter in some detail in our written submission. In section 5 he deals with health standards and particularly clause 38 says:

PN705

The clause refers to the adoption by the New South Wales independent transport safety and reliability regulator of the ...(reads)... does not operate or incorporate any aspect of the national standards.

PN706

He then notes that the clause also refers to health and wellness program operated by the rail agencies. He says:

PN707

RailCorp introduced a health and wellness program in early to mid 2004. The objective of this program is to promote health and ...(reads)... The cost of running the program is borne by the employers.

PN708

In section 6 he deals with contact with the Australian Rail - - -

PN709

SENIOR DEPUTY PRESIDENT HARRISON: I'm sorry, Mr Kite, would you just pause for a moment, please. So in clause 38.2 where it provides that this clause shall apply to any employees, is this clause 38?

PN710

MR KITE: Yes, your Honour.

PN711

SENIOR DEPUTY PRESIDENT HARRISON: And that's all you say 38 does?

PN712

MR KITE: Yes.

PN713

SENIOR DEPUTY PRESIDENT HARRISON: Is make the recognition in 38.1 and the - does 38.2 mean that it's understood that - - -

PN714

MR KITE: Can I put it this way, your Honour, I don't want to interrupt your train of thought.

PN715

SENIOR DEPUTY PRESIDENT HARRISON: No, it's all right.

PN716

MR KITE: 38.1 sets a background. 38.2 says the clause will operate to those performing within the definition of rail safety work covered by the national standards, so that's the scope.

PN717

SENIOR DEPUTY PRESIDENT HARRISON: Yes.

PN718

MR KITE: But it doesn't adopt the national standards. And then 38.3 goes on to deal with employer mandated testing. So 38.2 is saying these are the sort of people who can be required to have employer mandated testing and what the terms and conditions are in relation to that testing, who will pay for it and release from work and that sort of thing, who pays for the examinations.

PN719

SENIOR DEPUTY PRESIDENT HARRISON: Yes.

PN720

MR KITE: Is it convenient to move to the next section, your Honour?

PN721

SENIOR DEPUTY PRESIDENT HARRISON: Yes.

PN722

MR KITE: He sets out a conversation with Ms Jenny McAuliffe from ARTC. While we continue to rely upon it, it's essentially been overtaken by Mr Harmer appearing on behalf of ARTC to express their position. But as we understand it, the ARTC is not concerned with either application, it supports the making of the certification order in respect of the employees that it presently has on secondment and it supports the application for termination of the various agreements, either in the broad form or in the more narrow form. So it says that it - - -

PN723

SENIOR DEPUTY PRESIDENT HARRISON: That's the complete termination of them is supported.

PN724

MR KITE: Yes, it says it's not affected by that issue. It takes the view it's not a transmittee, but in any event, it's not concerned whether the Commission terminates them wholly or in the more restricted form that we have mooted.

PN725

SENIOR DEPUTY PRESIDENT HARRISON: Yes. Well, then any other questions we have we might direct them to Mr Harmer.

PN726

MR KITE: Indeed, your Honour. Perhaps I should note in section 7
Mr Greenhalgh gives a little more background to the ARTC. He refers to the ARTC lease and the New South Wales legislation which is earlier dealt with.

PN727

SENIOR DEPUTY PRESIDENT HARRISON: 7.3 answers one of the questions I was to have of Mr Harmer.

PN728

MR KITE: Indeed and that's part of ARTCs answer as well. We have our own instruments.

PN729

SENIOR DEPUTY PRESIDENT HARRISON: Yes. I can assume Mr Harmer is aware of the content of this affidavit and insofar as it deposes to matters relevant to the ARTC we would not need to ask you to confirm that they are accurate insofar as Mr Greenhalgh is speaking on behalf of your client?

PN730

MR HARMER: That is correct.

PN731

SENIOR DEPUTY PRESIDENT HARRISON: Yes, all right. Thanks. Is the 2003 agreement still within its life? I take it - well, I shouldn't take it - - -

PN732

MR KITE: Yes, your Honour.

PN733

SENIOR DEPUTY PRESIDENT HARRISON: Thanks.

PN734

MR KITE: And indeed your Honour will see that the agreement and the award referred to are intended to be an exhibit and I'm in a position to hand up three copies of that exhibit now which include that agreement and award.

PN735

SENIOR DEPUTY PRESIDENT HARRISON: And the upshot of
Mr Greenhalgh's inquiry is that there's just one enterprise bargaining agreement, at least in the Federal Commission, that identifies ARTC as the employer bound?

PN736

MR KITE: Yes. I can tell your Honour and other members of the bench that the ARTC operates in a number of states and is based in South Australia.

PN737

SENIOR DEPUTY PRESIDENT HARRISON: Who is the unions?

PN738

MR KITE: ASU is the union party.

PN739

SENIOR DEPUTY PRESIDENT HARRISON: ASU, I see.

PN740

MR KITE: And the RTBU is also a party to the award.

PN741

SENIOR DEPUTY PRESIDENT HARRISON: Yes. What sort of work does this cover? In any event, it covers ASU work I suppose is the answer to that question.

PN742

MR KITE: Mr Harmer tells me, your Honour, that the ARTCs position is that it covers all their work.

PN743

SENIOR DEPUTY PRESIDENT HARRISON: Yes, I'm sure that's the position but that of course is the operation of the Act. If you obtain a certified agreement, albeit maybe only with one union that might argue have an interest in the activities, if you obtain it, it covers all the work. I understand that.

PN744

MR KITE: Section 8 deals with common safety standards. Mr Greenhalgh says this:

PN745

Pursuant to the vesting arrangements discussed in paragraph 11.1 through to 11.15 of my affidavit ...(reads)... in January and February 2004 - - -

PN746

COMMISSIONER LARKIN: My apologies, Mr Kite. I was trying to clarify something in the documents I had before me.

PN747

MR KITE: I didn't mean to speak over the Commission.

PN748

COMMISSIONER LARKIN: No, no.

PN749

MR KITE:

PN750

A large number of staff remain to be vested from SRA to RailCorp. It is anticipated that the employees ...(reads)... State Rail, RIC and ARTC.

PN751

If we go quickly to that schedule, to a number of sections. The first deals with SRA employees already vested or an employee of RailCorp. The Commission will see at various states, some of which are not able to be specifically identified, a total of 7591 State Rail employees have moved across to RailCorp. Then the second section deals with SRA employees yet to be vested and the proposed dates and there is a further - - -

PN752

SENIOR DEPUTY PRESIDENT HARRISON: When in June, some time between the 14th and the 30th I take it?

PN753

MR KITE: That's the proposal.

PN754

SENIOR DEPUTY PRESIDENT HARRISON: Yes, I understand.

PN755

MR KITE: That's the subject of the note at the bottom. Then SRA employees seconded into ARTC and your Honour will see 258 is the former SRA, those are for the ARTC. Then the next section deals with the Rail Infrastructure Corporation in the same way. 2865 employees have transferred to RailCorp and another 853 have been seconded to ARTC. Returning to the body of the affidavit:

PN756

Given the extensive movements of employees across the rail agencies at different times for different purposes ...(reads)... applying to each agency individually.

PN757

I will just pause there and make this submission in addition. Clearly the vesting schedule shows the difficulty of these entities and the relevant unions negotiating at any particular time of any certainty about where these employees would be and it became imperative or it became a major factor driving the multi business agreement that there be commonality between the rail agencies not only in relation to occupational health and safety but on as many common terms as possible. Hence a further need or a public interest proposition for the multi business agreement.

PN758

Section 9 deals with an organisation chart with some approximate numbers to the best of Greenhalgh's recollection at the time of swearing the affidavit, but that's of course been supplemented by the numbers that were provided to the Commission today. Indeed the numbers are largely in relation to operation of agreements in RailCorp.

PN759

COMMISSIONER LARKIN: The RIC will have its own payroll system as well and finance system and HR, Mr Kite?

PN760

MR KITE: That's dealt with in the second page, as the Commission observes. Yes, there's a support system. Support processing seems to foster through.

PN761

COMMISSIONER LARKIN: Just for clarity could I just take you back to annexure 3, just on the last page. This is RIC employees seconded into ARTC and this is only for clarification. There's no numbers next to tradespersons, miscellaneous, nor senior managers. I haven't added up the 853. I just take it that there are no senior managers seconded over? It's not a matter of the figures being left out?

PN762

MR KITE: That's correct, I'm instructed.

PN763

COMMISSIONER LARKIN: That's correct, thank you. So those two boxes should be blank. Thank you.

PN764

MR KITE: Mr Greenhalgh instructs me that if they did move they were employees of RIC and are now employees of ARTC. They would have been recruited directly rather than transferred.

PN765

COMMISSIONER LARKIN: I only wanted clarity because I had an item in a box with no figure next to it.

PN766

MR KITE: No number next it.

PN767

COMMISSIONER LARKIN: Yes. Either there is no number of somebody left a number out, but you have clarified that for me now. Thank you.

PN768

MR KITE: Thank you, Commissioner. In section 10 Mr Greenhalgh deals with the process to ensure incorporated terms did not include non pertaining matters. He says at 10.1:

PN769

Clause 9.2 of the proposed agreement provides that former industrial instruments listed part ...(reads)... taken from the instruments themselves and thus cannot be uncertain.

PN770

He then deals with the additional certified agreement -

PN771

In addition to the certified agreements sought to be terminated by the rail agencies pursuant to section 170MH certain of ...(reads)... and other projects are -

PN772

And then he lists them and in 11.3 outlines the various certified agreement which we have pulled together as exhibit 2, if I could hand up three copies of that. I will attempt to deal with these compendiously if I may. The first two relate to the Blacktown/Richmond Alliance Project. That's a joint venture with Thiess Contractors Pty Ltd and the RSA, the predecessor of RIC.

PN773

SENIOR DEPUTY PRESIDENT HARRISON: So employees of RSA were designated to work on this project, is that how it worked?

PN774

MR KITE: The employees of RSA who were designated to work on this project continuously for a period of three months or longer would be governed by this agreement. If they worked incidentally under the agreement on the project they would continue to be covered by - - -

PN775

SENIOR DEPUTY PRESIDENT HARRISON: They remain employees though but their terms and conditions for the period are governed by this agreement. I am now going to show my ignorance of the Blacktown/Richmond project, but is it finished?

PN776

MR KITE: Long ago, your Honour. It's finished.

PN777

SENIOR DEPUTY PRESIDENT HARRISON: So there would be no employees then designated over?

PN778

MR KITE: No, there's no employees.

PN779

SENIOR DEPUTY PRESIDENT HARRISON: And they have gone back. All right.

PN780

MR KITE: There's no employees covered by those agreements.

PN781

SENIOR DEPUTY PRESIDENT HARRISON: Why are we concerned about this EBA then?

PN782

MR KITE: This is to satisfy the Commission that they need not be concerned about these EBAs.

PN783

SENIOR DEPUTY PRESIDENT HARRISON: Very good.

PN784

COMMISSIONER LARKIN: You will let us know when we need to be concerned, Mr Kite, will you?

PN785

MR KITE: That's why I hope to deal with these compendiously but I've just forgotten what the answer was on the first two.

PN786

SENIOR DEPUTY PRESIDENT HARRISON: No, no, I understand, because we need to know what agreements are said to continue that are what I'll call free standing and won't be called up by the 2005. I'm thinking out aloud here. Of course that section in the Act that says that an agreement ceases when it's replaced, one could argue 2005 at least replaces in the sense of the same employees in terms and conditions, it doesn't apply to multi business agreements. Now I think I follow it.

PN787

MR KITE: Well, we don't necessarily subscribe to that view of the Act,
your Honour.

PN788

SENIOR DEPUTY PRESIDENT HARRISON: All right.

PN789

MR KITE: We readily accept that there is a strong argument available that that's the position. Hence the 170MH applications are more abundant caution because this agreement is intended to replace all of the nominated agreements.

PN790

SENIOR DEPUTY PRESIDENT HARRISON: Yes.

PN791

COMMISSIONER LARKIN: These agreements haven't been terminated?

PN792

MR KITE: Apparently not, although the project has long since come to an end. The next three deal with the Track Australia Enterprise Agreement and although the employer parties to those agreements are described as Rail Services Australia and Plasser Australia Pty Ltd in joint venture as Track Australia Pty Ltd, the agreement applies only to employees who are employed by Track Australia, that is another corporation. It's in a sense a misdescription to Rail Services Australia and Plasser as the employers, and again for that reason these are agreements that the Commission need not be concerned about.

PN793

A similar proposition applies in relation to Rail Fleet Services Ltd Enterprise Agreement. The employer there was the company Rail Fleet Services Ltd. None of the current applicant employers. The last three deal with the transfer of RSA Chullora New South Wales Certified Agreement which governs the transfer of RSA Electro and Mechanical Services joint venture which is a joint venture between Transfield and the RSA. As presently advised, there are no employees of RSA employed under these agreements.

PN794

SENIOR DEPUTY PRESIDENT HARRISON: Was that tab 4 agreement, or which agreement? Sorry, tab 9. Which agreement or agreements does that submission relate to?

PN795

MR KITE: 10, 11, 12, your Honour. The employer is actually described as the joint venture. Also it's shown that there are no employees of RSA engaged under these agreements. So again they're not intended to be incorporated and they're not intended to be terminated in this processing. They relate to the current employees. In section 12 Mr Greenhalgh deals with the review of the expired certified agreements. He says:

PN796

This caused to be conducted a comprehensive review of the former awards and agreements ...(reads)... as to purport to incorporate those terms.

PN797

He then refers to a table which is annexure 5 and I will take the Commission to that and illustrate the way in which it is proposed. The first agreement or award referred to is the New South Wales Government Railways Building and Trades Construction Staff Award and that award rescinds and replaces two other awards. The relevant clause has that effect or purports to have that effect. The second instrument is the Government Railways Building and Trades Maintenance Staff Award and it rescinds and replaces certain nominated awards. The Public Transport Construction Award 23 April 2001 rescinds and replaces a number of agreements.

PN798

The Asset Management Functional Agreement 2000 is to be read and interpreted wholly in conjunction with a number of instruments. Similarly the Australian Rail Train Functional Agreement is to be read and interpreted wholly in conjunction with and that phrase is repeated time and again in relation to these instruments. I don't think there were any exceptions to that through the schedule.

PN799

SENIOR DEPUTY PRESIDENT HARRISON: It is only the terms therefore of the enterprise bargaining agreements that are referred to in schedule B and those that are to be terminated which are called up into the 2005 agreement?

PN800

MR KITE: Yes, your Honour. That's the understanding of the parties. Some of those clauses will be replaced by the core agreement. Some are not called up, specifically excluded, and the subject matters of those excluded clauses are also referred to for more abundant caution to exclude non pertaining matters.

PN801

SENIOR DEPUTY PRESIDENT HARRISON: So we still need to concern ourselves with the terms of those agreements but not in term - take for example the State Rail Authority that goes back to 1992, that the 1992 one calls up agreements, awards, we do not need to concern ourselves with that?

PN802

MR KITE: Because the schedule includes all extant agreements bar the one that we referred to which was in advertently left out but the terms of which are not to be incorporated into this agreement, they will be dealt with in the deed poll, and that agreement will also be terminated. So if this exercise is complete, that is, the Commission is able to certify it and does so and terminates the agreements as they apply to these employers or more generally, this will be the only instrument that relates to these employees and that instrument will incorporate all the terms referred to in those various agreements. So there are no others around to be called up or terminated and no other are intended to be called up.

PN803

In section 13 Mr Greenhalgh deals with the function of agreements. He refers to clauses 11, 12 and 13 of schedule C and refers to:

PN804

Potential localised reformed basis upon productivity and efficiency and achieve five functional grounds. The proposed ...(reads)... based upon productivity and efficiency.

PN805

And he sets out those lists. In clause 13.4 he says:

PN806

It's anticipated that all the benefits in any functional area will be variable, tailored and ...(reads)... The parties to the agreement propose that any
change - - -

PN807

SENIOR DEPUTY PRESIDENT HARRISON: That's extraordinary in light of everything I had read on Friday that that's how this agreement was to operate. It's at odds with its terms, is it not?

PN808

MR KITE: It's not intended to be, your Honour. If we need to deal with that - - -

PN809

SENIOR DEPUTY PRESIDENT HARRISON: Well, it certainly - - -

PN810

MR KITE: Could I say this, your Honour, there are two types of variation, as it were, contemplated by the facilitative provisions and your Honour will see that there are some undertakings given to the Commission as we go through
Mr Greenhalgh's affidavit in relation to this. That may remove concerns that the Commission may have. If there is intended to be a variation, that is, prescribe something completely different to what the core agreement provides that will apply generally across the organisation, that can only be dealt with by way of an application for variation under 170MD and that's the intention of the parties and indeed is conceived in the nine month review that is committed to in the agreement. So that at the end of that process there will be an application to vary the agreement to incorporate the agreement that comes out of that process.

PN811

The functional agreements, they may provide greater benefits to employees and in that sense prevail over the agreement but only do so where what is agreed is a productivity and efficiency change in work methodology for example that operates in a restricted functional area and is confined to that area. So it's not intended to change the substance of the agreement and put in a new term.

PN812

COMMISSIONER LARKIN: Mr Kite, it may change the roster arrangements. I have seen a number of functional agreements. I don't know what's envisaged by schedule C, but the functional agreements that I've had to deal with, they can be quite in depth and they go to a number of different changes with hours and rosters and I will actually find one when somebody gives me a folder of all the other agreements if I haven't got it down in my own office. This brings up a number of concerns, not least of all the dispute settling provision. These functional agreements are going to be in operation evidently. They are not going to form part of the agreement. They don't require a variation to the agreement. How do we settle disputes over the operation of a functional agreement if it's not part of the core agreement?

PN813

MR KITE: The Commission would, to the extent that there was an argument about the operation of the facilitating clause, have power to deal with the dispute about the implementation of the functional agreement.

PN814

COMMISSIONER LARKIN: But the functional agreement is not going to form part of our agreement, the Commission's certified agreement. What you're saying is that, look, we've got a schedule C, and please correct me if I've misinterpreted you, but schedule C sits there blank in this agreement.

PN815

MR KITE: At the moment.

PN816

COMMISSIONER LARKIN: And it envisages a number of functional agreements that will be negotiated at the different specific areas. We raised the other day, members of the bench, well, doesn't that involve a variation of the agreement and your answer now is, well, no, it won't, they will be agreements as far as the parties are concerned but they won't be agreements as far as the Commission is concerned. The Commission won't have any power over those functional agreements.

PN817

MR KITE: Well, they will only be agreements that are facilitated by this agreement. That is, they're agreements that provide for improved benefits to the employees in return for productivity and efficiency gains in a localised area and they will be recorded between the parties and entered in schedule C for housekeeping reasons, for housekeeping purposes, so that everybody knows what agreements have been reached and can access them and see them in the light of the facilitative provision. So that if there's a dispute about the operation of those agreements under the facilitative clause the Commission would have power with the dispute settlement procedure to assist the parties in a resolution of that dispute. That's the way it's envisaged and can I say that - - -

PN818

COMMISSIONER LARKIN: Is that how it's legally going to work?

PN819

MR KITE: Well, we hope so. I appreciate, Commissioner, the concern of - the Commission's knowledge of past functional agreements. Mr Greenhalgh says the functional agreements anticipated here are not intended to be of the same type as past functional agreements. They're meant to be much more localised dealing with enhanced benefits in the term for improved productivity. Might I say for example on rosters, in amongst the various agreements called up and rosters prescribed there's a provision dealing with, as I'm instructed, notification of change of rosters a minimum of 14 days, but it says unless otherwise agreed.

PN820

Now, it may be that the parties agree in one small area or in a larger area that pursuant to these facilitative provisions a real productivity and efficiency gain can be achieved by changing the 14 days to say seven days or something less. That's permitted by the agreements. It's not in conflict with them and it's going to return a benefit to a particular group, a benefit to the employer and some enhancements in the term to the particular employees involved. So that agreement would be made so that the standing provision operator in that group is seven days notice on the roster change rather than 14 days. That's completely consistent with the agreement. It doesn't amount to a variation in any sense.

PN821

It delivers a productivity benefit and some enhanced benefits to the employees and the idea is that that agreement would then be recorded in schedule C so that at any time the parties or the Commission can look at and say here's the certified agreement and here are facilitated agreements which have been developed, so in one place there's one authoritative document identifying all terms and conditions applicable.

PN822

COMMISSIONER LARKIN: Well, the Commission won't see it in schedule C unless there's a variation to the agreement to include it in schedule C. From the Commission's perspective schedule C is blank until the agreement is varied. Another issue is the Commission's obligation under the no disadvantage test. How do we know what these agreements - they're either part of the agreement before us or they're not. If they're going to be called up by the agreement and they form part of the agreement, how can the Commission be satisfied in regards to its obligations for the no disadvantage test? That's if you vary schedule C and tell us that you've got them.

PN823

MR KITE: Yes, yes.

PN824

COMMISSIONER LARKIN: But if you don't vary schedule C we don't know that you've got them. They just become your common law agreements I presume.

PN825

MR KITE: If the Commission pleases, schedule C wouldn't require a 170MD application to incorporate in its list a functional agreement because the agreement provides for that to happen.

PN826

COMMISSIONER LARKIN: But the Commission won't know.

PN827

SENIOR DEPUTY PRESIDENT HARRISON: The Commission is being asked to certify a multiple business agreement in the public interest now on the basis of acknowledging that there will be multitude functional agreements and we, by certification of this agreement, are finding that in the public interest?

PN828

MR KITE: It's not unusual for the Commission to certify agreements with facilitative provisions in them.

PN829

SENIOR DEPUTY PRESIDENT HARRISON: I know that. This is unusual. This is unique.

PN830

MR KITE: I'm sorry, I don't understand - - -

PN831

SENIOR DEPUTY PRESIDENT HARRISON: The manner in which this functional or facilitative provisions, these functional agreements are going to operate, this is unique. We are being asked to certify an agreement in the public interest which contains no classifications, no salaries, but calls up a number of agreements where one will find them and indicates that despite the fact that it's said to be covering the field, nonetheless it acknowledges that during its life that wages and salaries increases may be additional, may be available through functional agreement negotiations in accordance with clause 12. There's a procedure in clause 12 which includes a voting process using terminology of valid majority I think, same sort of terminology, and then in 13.4, after being approved by a valid majority - I'm sorry - yes, valid majority is in 13.2.

PN832

13.3, after they're approved under clause 12 they will be included as a schedule to this agreement and being incorporated in and form of this agreement. They will prevail over the extent of the inconsistency. I do not understand now how all of that is going to operate on the basis as you say. We do not need to concern ourselves what from time to time might be the functional agreements. There won't be a variation to the agreement. No variation to the agreement will be required.

PN833

COMMISSIONER LARKIN: And then you tell us that we have power to settle disputes over the functional agreement.

PN834

SENIOR DEPUTY PRESIDENT HARRISON: For myself I think I need to take a short break. This is entirely different and it might just reflect my not fully understanding and comprehending what was in the agreement in relation to functional agreements and the manner in which they were to be reflected from time to time. There's a number of considerations now that I will need to take into account. I just wish to take a short break.

<SHORT ADJOURNMENT [12.26PM]
<RESUMED [1.15PM]

PN835

SENIOR DEPUTY PRESIDENT HARRISON: Mr Kite.

PN836

MR KITE: May it please Commission. I just thank the Commission for the opportunity to meet in chambers in the interest of expedition. Can I invite the members of the Commission during the adjournment to complete the reading of Mr Greenhalgh's supplementary affidavit. I think I reached paragraph 13.7. The Commission will see from there onwards he deals with a number of undertakings and commitments the parties are prepared to give to the Commission in relation to matters connected with the agreement. That is not a restricted list. It is a list having regard to concerns raised by the bench to date and we would of course welcome any opportunity to assuage any concerns by similar undertakings or commitments.

PN837

Could I provide written submissions that we have developed in relation to the specific questions raised by the bench in connection with Electrolux. This submission deals with specific clauses and we submit that they satisfy the Electrolux test. Of particular importance no doubt will be clause 9 which is dealt with commencing at page 4 of the submissions. But it also deals with a number of other particular sections or clauses raised by the Commission during the course of the case. Can I also tender - - -

PN838

SENIOR DEPUTY PRESIDENT HARRISON: Shall I mark that, Mr Kite?

PN839

MR KITE: If your Honour pleases.

EXHIBIT #RAIL AGENCIES 5 SUBMISSIONS IN RELATION TO ELECTROLUX

PN840

MR KITE: Can I also tender an exhibit which contains examples of facilitative provisions in agreements certified by the Commission.

PN841

SENIOR DEPUTY PRESIDENT HARRISON: Are you going to show a couple in here that we have done ourselves, members of this Full Bench, Mr Kite? It's usually what happens when counsel make those sorts of submissions.

PN842

MR KITE: I haven't come to the - - -

PN843

SENIOR DEPUTY PRESIDENT HARRISON: I see Commissioner Larkin is in here. No, look, I understand. Yes.

EXHIBIT #RAIL AGENCIES 6 EXAMPLES OF FACILITATIVE PROVISION IN AGREEMENTS CERTIFIED BY THE COMMISSION

PN844

MR KITE: Can I indicate that we have made available to the Commission's staff the additional copies of the various agreements, the four folders I think finally during the adjournment. Can I take the Commission to the document provided to the Commission last Friday being the executive summary of the waterfall inquiry report and identify the areas that we submit would be of particular interest and relevance to the Commission in this matter. Dealing firstly with the executive summary and these pages are in Roman numerals. On the second page, in the first paragraph there is a reference to the panel of experts known as the Safety Management Systems Expert Panel, SMSEP.

PN845

The Commission will come across that acronym in a number of locations and that's what it stands for. Can I draw attention to the second last paragraph on that page and I will just identify these if I may. It's on the second page of the executive summary. It's the third paragraph and the second last on that page. Then at page 6 the Commission deals with the disaggregation and restructuring of the railways in 1996 and sets out some of that history on that page and the top of the next page and on page 7, about point 5, the legislative development for the Transport Administration Amendment ..... Management Act 2000, the report of the special Commissioner inquiry, including a number of matters identified at the top of page 8 such as random breath testing and drug testing.

PN846

On page 9 the Commission refers to the Rail Safety Act 2002 and the Rail Agencies Act 2003 in the second and third paragraphs and the Safety and Reliability Act 2003. On page 10 under the Heading SRA RailCorp it summarises a number of safety management matters applicable to that organisation. At
page 29 it deals with the subject of alcohol and drug testing and on the following page medical examinations. At page 43, a particularly relevant section in my submission dealing with safety culture in the organisation and I would draw particular attention to what the Commission had to say on the following page at about point 5 as to reasons for the demise of what was once a better safety culture and it includes in those reasons the disaggregation of the New South Wales railways in 1996 and it deals with occupational health and safety on page 47.

PN847

Then in the three chapters that are extracted dealing with alcohol and drug testing firstly, I invite the Commission's attention to the second last paragraph on the first page, really the second half of that.

PN848

SENIOR DEPUTY PRESIDENT DUNCAN: What was that again, Mr Kite?

PN849

MR KITE: In the chapter on alcohol and drug testing, the second last paragraph.

PN850

SENIOR DEPUTY PRESIDENT DUNCAN: The final report of the Glenbrook inquiry.

PN851

MR KITE: The final report of the Glenbrook inquiry.

PN852

SENIOR DEPUTY PRESIDENT HARRISON: Sorry, I'm on tab 2. Am I on tab 2?

PN853

MR KITE: Is it the chapter dealing with alcohol and drug testing?

PN854

SENIOR DEPUTY PRESIDENT HARRISON: Correct, paragraph 12.

PN855

MR KITE: Section 12.

PN856

SENIOR DEPUTY PRESIDENT HARRISON: Section 12.

PN857

MR KITE: Yes.

PN858

SENIOR DEPUTY PRESIDENT HARRISON: And on the second to last page?

PN859

MR KITE: No, on the second last paragraph on the first page.

PN860

SENIOR DEPUTY PRESIDENT HARRISON: Yes, thank you.

PN861

MR KITE: The final report of the Glenbrook inquiry.

PN862

SENIOR DEPUTY PRESIDENT HARRISON: Yes.

PN863

MR KITE: Then in the chapter dealing with medical examinations, chapter 13. The second page which is number 166, the last paragraph over onto page 167, indeed the bulk of 167 through to the top of page 168 and I ask the Commission to bear those in mind in the context of the medical testing and health promotion aspects of the agreement. There is also on page 169 a paragraph headed A Sixth Deficiency. Then in the section dealing with occupational health and safety, chapter 18, particularly the third paragraph and the last paragraph on the following page, 230, and on page 232, the second complete paragraph commencing, "It follows". Does your Honour wish to mark those documents, the folder?

PN864

SENIOR DEPUTY PRESIDENT HARRISON: Yes, I think so.

EXHIBIT #RAIL AGENCIES 7 FOLDER

PN865

MR KITE: I think that's effectively the material in our submission.

PN866

SENIOR DEPUTY PRESIDENT HARRISON: All right, thank you. We will take a break now. We will do our best during that time to peruse the balance of Mr Greenhalgh's supplementary affidavit and RAIL AGENCIES 5. Hopefully we will be able to achieve all of that by 2.30 so we will adjourn until then. If there's going to be any significant delay beyond that in the time we resume our associate will you let you know.

PN867

MR KITE: If the Commission pleases.

<LUNCHEON ADJOURNMENT [1.28PM]
<RESUMED [2.39PM]

PN868

SENIOR DEPUTY PRESIDENT HARRISON: Now, we have appearances in this matter. I should just actually confirm that the matter we have just called on is the application lodged today in the registry, an application to terminate the State Rail Authority of New Wales Enterprise Agreement 1992.

PN869

MR P KITE: I appear in that matter for Rail Corporation New South Wales, Rail Infrastructure Corporation and the State Rail Authority.

PN870

MR M THISTLETHWAITE: I appear for the Australian Rail, Tram and Bus Industry Union New South Wales branch, the Automotive, Food, Metals, Engineering and Printed Kindred Industries Union New South Wales branch, the Association for Professional Engineers, Scientists and Managers Australia, Australian Municipal, Administrative, Clerical and Services Union New South Wales and ACT Services branch, the Construction, Forestry, Mining and Energy Union Construction General New South Wales branch and that's it, your Honour.

PN871

MR R TRIPODI: I appear on behalf the Australian Workers Union.

PN872

MR R CARCARY: I appear on behalf of the CEPU.

PN873

I seek leave to appear and intervene in this matter of behalf of the Australian Rail Track Corporation.

PN874

SENIOR DEPUTY PRESIDENT HARRISON: I take it there is no difficulty with leave being granted for counsel and solicitors to appear and leave to intervene being granted to ARTC?

PN875

MR THISTLETHWAITE: No objection, your Honour.

PN876

SENIOR DEPUTY PRESIDENT HARRISON: Granted. Do we need to do anything more with this matter now, Mr Kite?

PN877

MR KITE: Your Honour, I should note that although it was referred to in calling the matter as an application under 170MH, it's an application under section 134N of the Industrial Relations Act 1988.

PN878

SENIOR DEPUTY PRESIDENT HARRISON: Yes, indeed. The face of the file and the manner in which the application has been described is in error and we will attend to that. You might even need to attend to the notification but I think between those instructing you and my associate that can be attended to.

PN879

MR KITE: If your Honour pleases.

PN880

SENIOR DEPUTY PRESIDENT HARRISON: Madam reporter, we will now proceed with both this and the matters on this morning on a common transcript. Mr Kite.

PN881

MR KITE: If your Honour pleases. Can I take it that the Commission has had the opportunity to complete the reading of Mr Greenhalgh's supplementary affidavit?

PN882

SENIOR DEPUTY PRESIDENT HARRISON: Yes.

PN883

MR KITE: Are there any matters that I can assist the Commission with in that affidavit or could I move onto the submission document, or is it more convenient to deal with any issues that the Commission has?

PN884

SENIOR DEPUTY PRESIDENT HARRISON: We might come back to it. You should not assume that a lack of questions now means that Mr Greenhalgh is in the clear assisting us with its contents.

PN885

MR KITE: He is ready and waiting with bated breath.

PN886

SENIOR DEPUTY PRESIDENT HARRISON: I am sure we will come back to it. There's a number of matters as to how it is said the agreement, the functional agreements and the delivery on commitments might be matters we do wish to come back to.

PN887

MR KITE: If your Honour pleases. Could I then go to the exhibit dealing with the examples of facilitative provisions. It's RAIL AGENCIES 6.

PN888

SENIOR DEPUTY PRESIDENT HARRISON: Just pause a moment, would you, Mr Kite.

PN889

MR KITE: Am I correct in assuming it's RA6?

PN890

SENIOR DEPUTY PRESIDENT DUNCAN: Yes, I believe you're right.

PN891

MR KITE: Thank you.

PN892

SENIOR DEPUTY PRESIDENT HARRISON: Before you take us to that, it is often the case that during a hearing I know exactly where everything is and I know what issue or submissions they relate to and then a couple of days later I'm not so sure and that means that it's usually better to mark things rather than not so you can account for them. Now, the folder exhibit 1, Australian Rail Track Corporation materials containing the relevant EBA and related documents, I didn't mark that I don't think.

PN893

MR KITE: I think they're described as exhibits to Mr Greenhalgh's affidavit.

PN894

SENIOR DEPUTY PRESIDENT HARRISON: Very good. Well, then at least it should be marked that way. So that then accounts for the other document. They're two folders, they're marked exhibit 1 and exhibit 2 and they are to be
read - - -

PN895

MR KITE: As exhibits to exhibit RA4, RAIL AGENCIES 4.

PN896

SENIOR DEPUTY PRESIDENT HARRISON: RAIL AGENCIES 4, thank you. Thanks, Mr Kite.

PN897

MR KITE: If the Commission please. The examples of facilitative provisions are simply extracts from a number of certified agreements. The identification of the relevant certified agreement is the first thing on the page and the first comes from the Sims Plastics and the National Union of Workers Agreement 2002, certified on 7 January 2003. It has the heading Award Flexibility and in clause 10.11.1 it refers to this award. Clearly it has its origin in an earlier award instrument but it purports to allow the parties to agree upon different provisions on specific subject matters and in clause 10.2.2, requires that any agreement reached must be recorded in the time and wages records kept by the employer in accordance with provision 1 of part 9(a), which is provision for a union involvement.

PN898

A provision for majority agreement in clause 10.3.2 and that is the majority of employees in the workplace or sections of it to implement a facilitative provision. There are certain then restrictions on implementing the agreement in 10.3.1 and following. 10.3.3 allows individual agreement where majority agreement is not available and in 10.4, provisions which can only be introduced by majority agreement. Section 11 deals with enterprise flexibility provisions and again there's a reference to sections 113A and 113B which apply to awards and not agreements. The second illustration is from Genpower/ASCA Australia Pty Ltd Victoria Agreement 2003, certified in November 2003.

PN899

The provisions are in almost identical form save that they have been updated to apply to agreements. So 2.1.1(a):

PN900

This agreement contains facilitative provisions which allow agreement between the employer and employees and how specific agreement provisions are to apply at the workplace.

PN901

COMMISSIONER LARKIN: Mr Kite, the first agreement required an application to be made to the Commission though, did it not?

PN902

MR KITE: In some cases, Commissioner, but not all, as I read it.

PN903

COMMISSIONER LARKIN: In that first agreement. If it was an enterprise flexibility provision there'd be an application made to the Commission, 11.3?

PN904

MR KITE: Yes. But not if one operated under the facilitative provision.

PN905

COMMISSIONER LARKIN: But 10, that's award flexibility.

PN906

MR KITE: But it's in an agreement.

PN907

COMMISSIONER LARKIN: Yes, it's in an agreement but it's - - -

PN908

MR KITE: It's clearly come from an award as a template.

PN909

COMMISSIONER LARKIN: Yes, and not been - - -

PN910

MR KITE: Not been changed.

PN911

COMMISSIONER LARKIN: Well, we think that.

PN912

MR KITE: We think that. In any event, it's almost the same clause as the next one which has clearly been changed to reflect the fact that it's in an agreement.

PN913

COMMISSIONER LARKIN: Yes.

PN914

MR KITE: One can see for example that 2.1.2, facilitation by individual agreement -

PN915

The following facilitative provisions can be utilised upon agreement between employer and employee provided that the agreement complies with 2.1.2(b), (c), (1) and (2).

PN916

Then there are the subject matters. (b) requires that the agreement be recorded and placed with the time and wages records -

PN917

There is to be an allowance for the purpose to be represented in negotiating the agreement and there must be a reasonable opportunity to participate in the negotiations by the employee's representative.

PN918

2.1.3 deals with the facilitation by majority and/or individual in some form and facilitation of majority agreement in 2.14. Interestingly in this one, on the third page, 2.17, dispute over facilitation:

PN919

In the event that a dispute or difficulty arises over the implementation or continued of the facilitative provision the matter will be handled in accordance with the dispute resolution procedure.

PN920

Clause 3.1, and that happened in this case, it's the fact that that facilitation provision. The agreement in respect of which though is kept with the time and wages records. It's not anything filed in the Commission.

PN921

COMMISSIONER LARKIN: And we don't know whether any undertakings were given.

PN922

MR KITE: We don't.

PN923

COMMISSIONER LARKIN: Because sometimes that can happen on the record. Yes.

PN924

MR KITE: Indeed. And you're right, Commissioner, we haven't extracted the full decisions. These are simply meant to be examples of the facilitative provision.

PN925

COMMISSIONER LARKIN: Yes.

PN926

MR KITE: McCafferty's Greyhound Pty Ltd Certified Agreement 2004, facilitative provision:

PN927

In order to suit the needs of the business and to main profitability -

PN928

et cetera. Again:

PN929

Some conditions contained in this award may be varied by agreement between the management and the staff or the union ...(reads)... It's not intended to be used a device to avoid the company's obligation or to result in unfairness to the employees.

PN930

And then (c) allows for reference of the dispute or difficulty to the Commission, to be dealt with under the dispute settlement provision. The Western Power Certified Agreement deals with enterprise flexibility. Again:

PN931

Where Western Power employees wish to pursue an agreement at the Business Unit Branch or workplace level to make the workplace ...(reads)... a union party to the award to represent them and negotiate.

PN932

In paragraph (b):

PN933

Agreements pursued under the provisions of this clause will not on balance reduce the overall conditions of employment in respect of ...(reads)... referred to in this agreement or the award.

PN934

And then under the heading Facilitative Provisions Agreement to Vary:

PN935

This agreement contains facilitative provisions which allow the agreement between Western Power and its employees on how specific ...(reads)... are identified in subclauses (b), (c) and (d) of this clause.

PN936

In (ii), again the facilitative provisions are not to be used as a device to avoid obligations. 3:

PN937

All agreements are to be kept with the time and wages records.

PN938

There's provision for the union involvement if the employee requests. Then there is a separation of those which can be dealt with by individual agreement and those which require either majority or individual agreement. In (ii) under the heading Majority Agreement:

PN939

Where agreement has been reached with the majority of employees in the workplace or part of it to implement a facilitative provision ...(reads)... subject to the agreement of each individual who is covered by it.

PN940

And on the following page, the section again deals with dispute over facilitation. Then there's the Pioneer Road Services South Australia Continuous Improvement Certified Agreement, making provision for the parties to agree on departure from the standard approach, including trials or changes to methods of calculating remuneration or any matter related to the needs of the business -

PN941

The change or the trial should be recorded in writing and copies provided to all relevant employees in the union.

PN942

And audit provision for the trials to be cancelled by either party. The Career Employment Australia, et cetera Agreement. Clause 31:

PN943

A facilitative provision is one which provides that the standard approach ...(reads)... or majority of employees.

PN944

And then there are listed a number provisions which can be facilitative provisions. The flight attendants facilitative provision:

PN945

To meet the needs of the enterprise the company may with the agreement of the ...(reads)... anything else being contained in this agreement.

PN946

A very facilitative provision, and requiring to review the administrative arrangements. Then there's another form of them in the Skywest Airlines Pilots Agreement. It calls for the establishment of a committee and the committee is to meet at least once every two months. Under the heading Facilitative Provisions:

PN947

Under the terms of the facilitative provisions the standard approach in this agreement may be ...(reads)... or the WRC as appropriate.

PN948

On the second page:

PN949

Facilitative agreements will be recorded in writing and must be signed off by the general manager before ...(reads)... if it affects them directly.

PN950

And there's provision for the dispute settlement procedure to be used in relation to disputes. Another form of facilitative provision is in the Superior Systems Pty Ltd Agreement 2003-2005. Again a number of subject matters are identified and the parties can agree to those, or vary those. In the MKH Industries Pty Ltd Agreement it provides:

PN951

The company and its employees may negotiate special provisions, provide flexibility and/or ...(reads)... as set out in the appendix.

PN952

I'm not sure what's meant by a vacation if it means after the nominal term or otherwise, but there seems to be one provision which allows during the life of the agreement and before vacation and one after vacation. Another example in the Regional Express Aircraft Engineers again requiring the agreement to be in writing and available to affected employees. The ..... Industry ..... New South Wales Enterprise Agreement. I draw attention to 8.3:

PN953

Where agreement is reached it shall documented and signed by all persons who have agreed to make the variation and will ...(reads)... to this enterprise agreement.

PN954

The Bridgestone Helicopters allows letters of agreement or a letter of understanding or a letter of exemption in respect to nominated provisions. 16.5 indicates to be managed to avoid unfairness to individuals and the dispute or difficulty to be dealt with under the disputes procedure. The Virgin Blue Cabin Crew and Flight Attendants Association of Australian Agreement 2002-2005 has a number of facilitative provisions. Again there is a workplace committee -

PN955

The primary roles of the workplace committee is to assist Virgin Blue in handling challenges. It considers matters brought before it under the clause to examine any cabin crew specific issues.

PN956

Then in paragraph (c) the matters are listed which may be varied by agreement without applying the provisions for variation of an agreement, as required by the Workplace Relations Act 1996. Those matters are listed. The Scientists, Engineers and Managers and Facilitators Agreement follows a pattern of identifying certain provisions may be varied -

PN957

The agreement shall be recorded in writing and available to every affected employee.

PN958

It's not to be a device to avoid obligations and reference to the disputes provisions. A similar pattern in the next agreement, Express Ground Handling. The HIC Managing Change Certified Agreement:

PN959

This agreement contain facilitative provisions which allow agreement to be reached between the managing director and the employees ...(reads)... nor should they result in fairness.

PN960

And they're listed. A similar or a familiar form of the agreement is the Gardenia International College Certified Agreement, although this one requires an application to be made to the Commission in clause 11.2.2. Interestingly that's in relation to the enterprise flexibility provisions and it refers to section 113A and 113B. There doesn't appear to be any such requirement in relation to the facilitative provisions. The Gordon Service Pty Ltd Certified Agreement allows for a memorandum of understanding with an individual employee. In 2.8.4, it notes that the memorandum of understanding is subordinate to the agreement.

PN961

2.8.4 deals with the subject matters. The Albert Road Clinic provides a general facilitative provision dealing with the working environment. Australian Maritime College refers to the agreement containing facilitative provisions. They're identified in 23.4. In 23.3, the injunction that they not be used as a device to avoid agreement obligations, nor should they result in unfairness. Then we come to the Catch Runaway With the Circus Performers Certified Agreement which I'm sure was a great deal of fun, Commissioner, certainly by comparison.

PN962

COMMISSIONER LARKIN: I didn't do inspections though, Mr Kite, unfortunately.

PN963

MR KITE: The variation of the agreement clearly refers to section 170MD in clause 8.2 and the flexibility provisions in 13.4 requires any agreement reached through the consultative mechanisms requires an application to vary in accordance with clause 8. That form of provision does require in both forms an application to the Commission. The Opera Australia Performers Certified Agreement, 13.3:

PN964

The purpose of the consultative mechanisms and procedures to facilitate the efficient operation of the workplace ...(reads)... made available to all employees of the company.

PN965

And in 13.5:

PN966

Where the agreement is varied to give effect to an agreement made pursuant to this clause the variation shall become a schedule to the agreement.

PN967

Interestingly that seems to provide for both forms of variation. There's clearly an array of different types of agreements. Some require applications to be made to the Commission, many don't, and some simply require the agreement to be in writing to be kept with the wages records. Some allow for them to be added as an addendum or annexure to the agreement. There seems to be a wide array of options. None of them necessarily would be consistent with the propositions that we have advanced to the Commission, particularly in light of the undertakings we have referred to in the affidavit of Mr Greenhalgh and commitments as well.

PN968

There is one other matter I should perhaps draw to the Commission's attention. It's a decision of a Full Bench in Kilcoy Pastoral Company Processing Certified Agreement 2002, in PR916582, in which the Commission is looking at a provision which allows an alternative method of payment from time pay to piece work and that was challenged on the basis that it was allowing the employer to vary. And without going to the detail I will make copies available to the Commission. The relevant is not so much the particular clause, as to the approach taken by the full bench to this type of issue and that is set out in paragraph 10. The Full Bench says:

PN969

In our view the Commissioner has not erred in finding that clause 16 is an agreement as defined by the Act. Clause 14 ...(reads)... being characterised as an agreement.

PN970

Then at paragraph 22 in relation to other grounds and in particular grounds going to section 170MD and it disallowed a variation without going back to the Commission, the Full Bench says:

PN971

The grounds of attack on the Commission's decision was ...(reads)... that can only ever be in excess of those provided in the agreement.

PN972

We would say that a similar approach can be taken to the facilitative provisions in this case and to an extent, having regard to the concerns raised by the bench in discussion, we have tried to address those by appropriate undertakings, recorded in Mr Greenhalgh's affidavit. If there are any further undertakings needed to satisfy the Commission that these facilitative provisions are meant to operate in the way we indicated, then we would be happy to give consideration to giving those.

PN973

SENIOR DEPUTY PRESIDENT HARRISON: The term undertaking is one also in division 4, part VIB of the Act for the certification of agreements, but in particular it is in section 170LU - well, I am sorry, the undertakings in 170LV, putting to one side the circumstances in which an undertaking or the Commission considering the option of an undertaking may arise, that - I am sorry, I will start again.

PN974

Undertakings are referred to in the provisions of the Act concerning certification of agreements. In section 170LV, they provide that if under sections LT or LU, the Commission has grounds to refuse to certify and certain undertakings can be sought, considering just for the time being the circumstances in which the Commission may have a concern, namely, or grounds to refuse to certify by reference to LU, that is LU requires us to be satisfied that when certifying a division 3 agreement, it is going to have the effect of settling or further settling matters the subject of the agreement and maintaining that settlement and preventing further disputes, the Commission was of the view that undertakings were required, would the undertakings that have been given by Mr Greenhalgh also be the undertakings that are tendered should we ask for undertakings in accordance with section 170LV(2), particularly in light of the fact that if they are not complied with, the agreement may be terminated and I am happy for you to come back to us with the answer to that. The same question will be asked of the unions.

PN975

MR KITE: I think I know the answer, but I will take careful instructions before answering it, if the Commission please. Can I move then to RA5, the outline of our submissions, as to specific questions raised by the bench?

PN976

SENIOR DEPUTY PRESIDENT HARRISON: Yes.

PN977

MR KITE: At least raised on Thursday last and go quickly to those and if I am traversing area which your Honour is now satisfied about, I am happy to move on.

PN978

SENIOR DEPUTY PRESIDENT HARRISON: We may be able to accept Rail Agencies 5 as submissions about the concerns raised by us in relation to certain provisions in the core agreement, our concerns as to in turn how they will operate and we note the manner in which for example clause 9 comprises in part substantive provisions in machinery, we see how that is put.

PN979

MR KITE: Yes.

PN980

SENIOR DEPUTY PRESIDENT HARRISON: I am attempting to identify a way in which we can avoid having to go through each provision of this, but I know a number of the matters fall into the categories that I have just indicated and we probably don't need you to go through all of those. Maybe if we just move on, Mr Kite, and we will think about this document as to whether there's any specific matters in it we wish you to assist us with.

PN981

MR KITE: And, of course, we are happy to do it on a supplementary basis as well, if the Commission wishes that done. We did provide to the Commission staff an additional submission which I didn't hand up prior to the adjournment dealing with termination of prior certified agreements. Does the Commission wish to mark that?

EXHIBIT #RAILAGENCIES8 SUBMISSIONS AS TO SPECIFIC QUESTIONS RAISED BY THE FULL BENCH ON TERMINATION OF PRIOR CERTIFIED AGREEMENTS

PN982

MR KITE: If the Commission pleases. I don't know whether the Commission had an opportunity to look at this, but it looks at the effect of section 170LX, particularly in the light of a multi-business agreement. There has been some discussion with the bench about this matter. In this submission we have sought to make the proposition that most of the agreements, pre-existing agreements, if this agreement were to be certified, would cease to operate in accordance with section 170LX because although it is a multiple business agreement, it is still a certified agreement and section 170LX refers to certified agreements generally.

PN983

So much is dealt with on the first page. On the second page in paragraph 2.7 we note that notwithstanding section 170LY, a multiple-business agreement inconsistent with any other agreement not being a multiple-business agreement has no effect and there needs to be then a resolution of the potential inconsistency; 2.8 observes that the multiple-business agreement comes into operation when certified.

PN984

We then deal with section 170LX(2). It really has two essential terms. One is that the nominal expiry date has passed of relevant certified agreements and the other is that the agreement is replaced by another certified agreement. There can be no doubt in our respectful submission that the intention here is to replace all of these certified agreements by this certified agreement, so on the face of it, 170LX(2) would seem to apply.

PN985

The question, though, is whether a multiple-business agreement on certification automatically ceases the operation of earlier certified agreements and it is our submission that given the expiration of those earlier agreements and the replacement of them, the effect of the Act would require consistent with its intent and purpose that section 170LX be given its full operation, hence the certification of this agreement would cause those earlier agreements to cease to operate.

PN986

That is a primary submission. It doesn't deal with all of the certified agreements in any event because at least the 1992 agreement in respect of which we have made separate application under section 134N of the Industrial Relations Act appears not to be affected by the operation of section 170LX and there is a decision of your Honour, Senior Deputy President Duncan, dealing with that matter in print R4889. It is research that we have only recently come across.

PN987

SENIOR DEPUTY PRESIDENT DUNCAN: That was a more abundant caution matter, was it not?

PN988

MR KITE: It was, and we have, of course, made application under section 170MH and 134N for more abundant caution as well.

PN989

SENIOR DEPUTY PRESIDENT HARRISON: So in those circumstances, you should not assume that I disagree with the manner in which the argument is developed in Rail Agencies 8, but assuming that was not the effect of section 170LC(5) and that earlier certified agreements in a single business might remain in effect, but that is just not going to happen here, because they will be terminated.

PN990

MR KITE: No. They will be terminated. I should say in relation to that, though, of course, if the Commission came to the view that they shouldn't certify this agreement, then we would ask the Commission not to proceed on the termination of the earlier agreements.

PN991

SENIOR DEPUTY PRESIDENT HARRISON: We don't need to hear you further on that. We understand they were the rules from the beginning of this hearing.

PN992

MR KITE: If your Honour pleases. A couple of other matters that I should deal with. I have adopted as my submissions the matters set out in Mr Greenhalgh's affidavit dealing with the public interest. Could I add to those this proposition? There has been some discussion between the bench in a very preliminary, limited fashion about whether this is truly a multiple-business agreement or a single enterprise agreement.

PN993

Having regard to all of these agencies operating under the control of the single Minister and their close proximity and the legislative scheme under which - we have taken again the cautious view that having regard particularly to the position of the Rail Infrastructure Corporation, the separate CEO and board and the ongoing role, that the cautious view should be that it should be regarded as a multiple-business agreement, but it is the public interest consideration which, of course, goes to why this agreement should be made rather than individual agreements or that is single enterprise agreements, should be informed by that close relationship between these three agencies, that is on one view of it, it could have come as a single enterprise.

PN994

We may have been wrong and if we were, of course, that puts our agreement at nought and the Commission would not certify if, indeed, we were found to be multiple businesses, but the closeness of these agencies in their activities and operation and the fact that they are controlled by - or under the responsibility of one Minister in my respectful submission should be accepted as a strong argument as to why this agreement would meet the public interest test.

PN995

That is, it is not in any sense a significant departure from the single enterprise concept, albeit legally and technically it is a multiple-business agreement. There was the issue of the updating of the schedule dealing with allowances. In my respectful submission, that should be regarded as a typographical correction. They are matters explained to the employees at the time that those allowances needed to be adjusted in accordance with the agreement itself.

PN996

The agreement requires those calculations to be done. They were simply done in error and there is - I can give the Commission a reference to a decision of the Full Bench in the Western Australia Government Liquor, Hospitality and Miscellaneous Union Redeployment, Retraining and Redundancy Certified Agreement, PR952479 where the Full Bench in that case found that a change in the name of one of the union parties, it had changed its name, the new name was put to the employees at the information meetings and a vote, but on the application being made the Commission, the old name was inserted.

PN997

The Commission accepted that correcting the name of the union did not constitute a change to the agreement and the agreement voted on was the agreement which the parties seek to have certified. In our respectful submission, the same thing would apply in this case. The typographical error was corrected. The employees were advised that at the time, the agreement they voted on is the agreement that we seek to have certified. Unless there are any other matters which the Commission wants me to address now, they are the submissions that we would make.

PN998

SENIOR DEPUTY PRESIDENT HARRISON: I think we will hear
Mr Thistlethwaite and any of the unions who have submissions to make peculiar to their organisations and that is overlooking Mr Harmer, what you might want to tell us about ARTCs circumstances. Well, it might be appropriate we would next hear from you, then the unions and then we might take a break to decide where we go from there. Mr Harmer.

PN999

MR HARMER: May it please the Commission. I will be brief. The submissions of the ARTC relate to all three applications as we have seconded employees in fact by the proposed agreement and also by those agreements which are proposed ..... The Commission has the numbers on those secondees. I am instructed that at today's date there are 1120 secondees from SRA and RIC that are currently engaged in the ARTC.

PN1000

In addition there are some 180 direct employees of the ARTC who are involved in the New South Wales operations and of those, 110 are covered by the certified agreement that has been previously tendered. I am further instructed to advise the Commission that the vast majority of the direct employees are in managerial and supervisory roles in relation to the secondees.

PN1001

However, there is an area of overlap in relation to some 24 work group leaders. At the work group leader level, three are 24 direct employees and some 56 seconded employees. That is the overlap and I am further instructed that in only the last 14 days there have been some 10 temporary signallers engaged to fill a temporary shortfall capacity and they are direct employees working alongside seconded employees, so that's the limited extent of people working side by side under the separate agreements.

PN1002

COMMISSIONER LARKIN: They would be SRA, working with SRA seconders?

PN1003

MR HARMERS: That is correct, as I understand it, Commissioner. I am instructed to inform the Commission, however, that the ARTC in consultation with RIC and SRA maintain what are called shared policy arrangements.

PN1004

SENIOR DEPUTY PRESIDENT HARRISON: I am sorry?

PN1005

MR HARMER: Shared, and those shared arrangements, for example, address occupational health and safety issues and so even employees working side by side under the ARTC agreement and the proposed agreements would be under a single OH&S co-ordinator under the labour services agreement. I am further instructed to advise that the ARTC does not consider that there are significant areas of disparity or convenience caused by employees working side by side under the ARTC agreement and this proposed agreement.

PN1006

I am thus instructed to advise that number one, in relation to the concern raised by unions in New South Wales and the ACTU last week concerning the successional transmission issue, the concern we would seek to raise is that we were not previously put on notice of that concern by any of the relevant unions in any form whatsoever.

PN1007

Secondly, having raised that concern, we contend that there has been no transmission or succession, that we are not bound by the agreements that are to be terminated and we reserve our position in relation to that and that should be addressed on another day. Thirdly, as has been tendered, we do have our own certified agreement in place which we contend applies to all relevant directly affected employees engaged in New South Wales work, the 110 I have mentioned previously and we also have an underlying award to which the ASU and the RTBU are party.

PN1008

Fourthly, I am instructed to advise the Commission that we have no objection to and indeed support the termination of the various SRA agreements that are purported to apply to us and whether that be the narrow form of the exhibit that has been tendered as Rail Agencies 1 or in a broader form that terminates them in relation to the wider issue of being found under 170MD.

PN1009

SENIOR DEPUTY PRESIDENT HARRISON: I am sorry, what was that section?

PN1010

MR HARMER: Section 170MD about the extension around ..... So as I understand Rail Agencies 1, the order is drafted so as to address only those
underlying agreements ..... SRA and RIC and it is sought not to impact entities that are potentially caught by 170MD of the Act. We support that narrow determination or if it should be the case that a partial termination cannot be achieved under section 170MH of the Act which is a issue which has been raised, we would still support the wider application ..... entities bound.

PN1011

Finally, I am instructed to advise the Commission that in relation to the current 1120 seconded employees who would be impacted by the certification of the proposed agreement that the ARTC has been consulted in relation to it and supports certification of that agreement and I repeat does not see any inconvenience arising from interplay with the ..... If the Commission please.

PN1012

SENIOR DEPUTY PRESIDENT HARRISON: Yes, thanks. Mr Thistlethwaite.

PN1013

MR THISTLETHWAITE: Thank you, your Honour. Your Honour, we rely on and support the evidence tendered in the affidavits of Mr Greenhalgh and the supporting affidavit. We rely on that evidence in respect of the background to the recent reforms to the New South Wales rail industry, also as a means of background to these enterprise agreement negotiations and the operation of the proposed agreement.

PN1014

Mr Greenhalgh also goes to a number of matters related to negotiations with the AWU and the ETU. I understand that separately those unions are going to make further submissions in respect of that. Can I also indicate that we adopt the submissions of Mr Kite in relation to the statutory obligations on the Commission in respect of this proposed agreement, in particular public interest considerations, also in respect of the operation of the agreement and the issues associated with the Electrolux decision.

PN1015

Your Honours, Commissioner, I don't intend to make any lengthy submissions. What I would like to do is provide some background for the Commission in relation to the reforms to the rail industry and the negotiation of this enterprise agreement from the perspective of the employees and respective unions.

PN1016

It has been outlined, of course, the substantial structural reforms that have occurred in the rail industry in the past decade. Those, of course have resulted in major changes in regulation of the passenger and freight rail industry and those changes have had significant consequences for the employees and the various unions working in the industry.

PN1017

It has been outlined that the rail industry was corporatised some years ago. In 2004, the Rail Corporation of New South Wales was established with governance and management provided by a board of directors rather than through a Government department and under the direction of the Minister. Railcorp, of course, merges certain functions of the former State Rail Authority and the metropolitan functions of the Rail Infrastructure Corporations.

PN1018

As has been outlined, some of the responsibilities of RIC in rural and regional New South Wales are now operated and maintained by ARTC. Of course, those structural changes are not concluded and will continue in the future and that process has been outlined in the evidence tendered and the submissions.

PN1019

Can I say from the perspective of the unions that although there are three separate entities from the employer's side who are party to this agreement, it has been pointed out and it is very much the view of the unions that those three entities are integrated operationally and do form part of the one New South Wales rail passenger network and it has been pointed out that the CEO of SRA and Rail Corporation is the same person.

PN1020

Those structural changes have produced significant impacts on the workforce and as some of those operational functions of SRA and metropolitan RIC are vested under the new Railcorp, so, too, have the employees who were employed in those areas and an outline has been provided of the process of vesting, that process was begun in 2004 and I am instructed will continue into the future with employees vesting into the new corporate entity.

PN1021

At the same time, of course, a number of employees are still employed by SRA and SRA continues to have responsibility for a number of business aspects of passenger rail. Also at the same time, a number of employees are still employed by RIC and working for RIC and, of course, there are a number of employees employed by RIC working on secondment to ARTC in rural areas.

PN1022

All of these changes have, of course produced some uncertainty and insecurity amongst the employees in respect of their jobs and the roles that they perform within the rail industry and it was against this background, your Honours, Commissioner, that the rail unions sought to negotiate a single enterprise agreement covering the three major rail entities to ensure consistency of conditions and maintenance of industrial harmony into the future.

PN1023

It has been outlined in Mr Greenhalgh's initial affidavit at 8.4 and the unions concur with this that on or about 26 March the rail unions sent a letter to Railcorp attaching a rail union single bargaining unit draft log of claims. That log of claims was the launching pad, so to speak, for these negotiations from the perspective of the unions.

PN1024

It has been around that log of claims that the negotiations for a single enterprise agreement have revolved. At 8.5 it is detailed in Mr Greenhalgh's affidavit that the labour council sent a letter to the rail agencies initiating bargaining periods associated with the negotiation of the proposed agreement. I am not going to go into any detail on the negotiations. They have been outlined quite adequately in Mr Greenhalgh's affidavit.

PN1025

There was some disputation during the negotiation. The Commission is aware of that and Commissioner Larkin is involved in conciliation proceedings relating to that disputation. Those proceedings occurred in November of last year and the unions wish to thank the Commission for the role that the Commission played in respect of those proceedings and they were the springboard to a resolution of this particular dispute and the proposed agreement which comes before the Commission in these proceedings.

PN1026

As I outlined, it was because of the structural reforms in this industry and the associated uncertainty that this generated amongst the rail workforce that the unions advocated a single enterprise agreement and it is on that basis that we submit that it is in the public interest for the Commission to certify this agreement as a multiple business agreement. We rely on the submissions of Mr Kite and the submissions contained in the affidavit of Mr Greenhalgh in respect of that, but I also wish to add that it is the union's view that a common set of core conditions in respect of wages and allowance adjustments in particular, the employees of these three entities, whilst this process of structural change is occurring, is essential to maintaining industrial harmony in this particular industry.

PN1027

We very much see it as a sensible industrial strategy to maintain consistency across the sector and reduce potential industrial disputation and if I can take the Commission to a number of provisions in the agreement, the proposed agreement, which back that claim, clause 14.4 and the Commission is already aware of these provisions. I won't go to them at any length, but 14.4, of course, provides that:

PN1028

The parties agree that SRA and RIC employees vested to Railcorp will transfer across on the same terms and conditions of employment that they are entitled to immediately prior to being vested.

PN1029

The unions see that as very much an important clause for the maintenance of those conditions that exist at this point in time. Clause 22 of the agreement which operates to ensure - provides a process for the filling of authorised positions associated with the restructure and the vesting of employees into the new structure and, importantly, clause 25 of the proposed agreement provides for a system of salary maintenance for employees for a period of 12 months should an employee be displaced through this process of structural change.

PN1030

From the perspective of the union, those particular provisions contained in the proposed agreement are very important for the maintenance of industrial harmony in respect of the reforms that are taking place. The unions see this approach to a single enterprise agreement as very much a simpler, more user friendly process for the regulation of wages and conditions for employees and, indeed, employers, prospective employers in this particular industry.

PN1031

We are of the view that it makes sense as functions on the various entities are merged and vested into Railcorp that the core conditions be regulated through the one document. We see this as a means of improving consistency and harmony. In respect of that, importantly this proposed agreement at clauses 9.6 and 9.7 contains commitments related to the consolidating and presenting in plain English all conditions of employment that are contained in the certified agreements which are being subsumed in this agreement.

PN1032

This process will be completed within 9 months from certification of this agreement and in 9.7 the employer undertakes to produce for distribution a consolidated employee handbook which shall contain classifications, rates of pay and conditions of employment as contained in this agreement and all other existing certified agreements and awards applicable to employees who are respondent to this agreement and again this process will be concluded within 9 months.

PN1033

If one was to adopt a cynical attitude, then one could state that similar provisions have been around in many, many enterprise agreements over many, many years, but the obligations imposed by those particular clauses is sometimes not met. We certainly understand the Commission's concerns in relation to this particular provision.

PN1034

We are confident that the provision and the obligations contained in that provision will be met. It is certainly the view of the unions that they support having these particular clauses and indeed one agreement being produced and I am instructed that a commitment has been given by Railcorp to devote staff to this process.

PN1035

The unions are certainly committed to it. We have no problem agreeing to, in fact we would certainly welcome any recommendation or process from the Commission which involved reporting back in relation to the progress that is being made by the parties in fulfilling these obligations, but as Mr Kite outlined, we very much view this agreement as a first step in the process of bringing some harmony and unity to conditions for employees in this industry and we will certainly be supportive of the process and making sure that we do all we can to ensure that the nine-month deadline is fulfilled.

PN1036

COMMISSIONER LARKIN: Mr Thistlethwaite, is that an undertaking made by the rail agencies or is that an undertaking made by the unions?

PN1037

MR THISTLETHWAITE: That is an undertaking made by the unions, your Honour. I can report that during the negotiations, an undertaking was given by Railcorp to devote employees to this particular task.

PN1038

COMMISSIONER LARKIN: Yes, that is what I was thinking. What is the undertaking on behalf of the unions in regards to that?

PN1039

MR THISTLETHWAITE: The undertaking on behalf of the unions is to comply with the process outlined in those two particular clauses and be involved in and facilitate the production of such a document.

PN1040

COMMISSIONER LARKIN: Give me those two clauses again, please?

PN1041

MR THISTLETHWAITE: 9.6 and 9.7, page 17 of the agreement. You will note that the clause begins:

PN1042

The parties commit to consolidate.

PN1043

COMMISSIONER LARKIN: Will there be union representatives assisting the rail management, or is it rail management that compile all those provisions in plain English and what have you?

PN1044

MR THISTLETHWAITE: The exact mechanics of how the process is going to work I don't believe have been agreed as yet, but we certainly will be seeking union representation on any body that may be established.

PN1045

COMMISSIONER LARKIN: I only ask the question because it says the parties. That is what the clause says. In that regard, Mr Thistlethwaite, then I think her Honour, Senior Deputy President Harrison raised with Mr Kite the provisions of the Act in regards to 170LV(2). I just might ask you your view.

PN1046

MR THISTLETHWAITE: I am sorry, I don't understand what the question is, Commissioner.

PN1047

COMMISSIONER LARKIN: Have you read that section of the Act, 170LV?

PN1048

MR THISTLETHWAITE: Yes.

PN1049

COMMISSIONER LARKIN: If an undertaking is not complied with, the Commission after giving the persons who made the agreement an opportunity to be heard may, (a):

PN1050

Order the one or more persons who gave the undertaking to comply with it;

PN1051

or, (b):

PN1052

By order, terminate the agreement.

PN1053

MR THISTLETHWAITE: Yes.

PN1054

COMMISSIONER LARKIN: So we understand if we have undertakings that are given by parties or individual - the employer or the unions, that there is a power there if they are not complied with to terminate the agreement, after giving the parties an opportunity to be heard, of course.

PN1055

MR THISTLETHWAITE: Yes, I understand that and we give that undertaking.

PN1056

COMMISSIONER LARKIN: Thank you.

PN1057

SENIOR DEPUTY PRESIDENT HARRISON: Now, I am trying to understand how during the life of this agreement the classifications and wages are going to be reflected in it. I know that functional agreements, provided there is identified productivity offsets might additionally be looking at classifications and wages, but I am trying to understand how classifications and wages might - or whether they are to be part of this consolidation. It is conditions of employment that are referred to. What about the consolidation of classifications?

PN1058

MR THISTLETHWAITE: The overwhelming majority of the classifications are contained in the various agreements that are called up by the operation of clause 9. Those particular rates of pay associated with those classifications are adjusted by the operation of the core agreement for the four per cent increases. Those classifications operate in the manner that they have to date. The only way that they may be changed or varied would be through functional negotiations.

PN1059

COMMISSIONER LARKIN: So these functional agreements that are envisaged by clause - or are to be listed in clause C or what have you, they will be the instruments that contain the classifications and the actual rates of pay?

PN1060

MR THISTLETHWAITE: No, as far as I am aware, the agreements that are called up, the agreements that exist at the moment and are called up into this document, they contain the classification structures, that operate currently.

PN1061

COMMISSIONER LARKIN: So is the intent of 9.6 that those agreements once they are looked at and digested and written in plain English will then, those classification structures which contain those agreements, will be brought into this core agreement by way of a variation under 170MD?

PN1062

MR THISTLETHWAITE: Yes.

PN1063

SENIOR DEPUTY PRESIDENT HARRISON: We will therefore read in clause 9.6:

PN1064

All conditions to be all of the provisions in the functional agreements that include conditions as well as classifications and salaries.

PN1065

MR THISTLETHWAITE: Yes.

PN1066

SENIOR DEPUTY PRESIDENT HARRISON: Thank you.

PN1067

COMMISSIONER LARKIN: And the application will be made within 9 months of certification, if this application is successful, Mr Thistlethwaite?

PN1068

MR THISTLETHWAITE: There is a common view here that that is the approach that will be taken.

PN1069

COMMISSIONER LARKIN: It is going to be a busy year.

PN1070

MR THISTLETHWAITE: It certainly will be. Any further questions in relation to that?

PN1071

COMMISSIONER LARKIN: I will think about it.

PN1072

MR THISTLETHWAITE: Thank you, Commissioner.

PN1073

SENIOR DEPUTY PRESIDENT HARRISON: When I had earlier been speaking of undertakings, at that time it was in the context of the several matters addressed by Mr Greenhalgh in particular in his supplementary affidavit and it was the constraints that had been put on what could be achieved by functional agreements or what additional wages would be reflected in them and the concern arose obviously in the public interest context about what confidence could one have that they wouldn't flow and I think that it was in that - well, that is one of the concerns, was in that context that Mr Greenhalgh in his supplementary affidavit indicated what, at least on that side of the table, they were prepared to volunteer to the Commission. I later followed that up with a question as to whether what had been there volunteered might also form the basis of undertakings and I said at some stage I would direct the same question to you.

PN1074

MR THISTLETHWAITE: Yes.

PN1075

SENIOR DEPUTY PRESIDENT HARRISON: I think when we were having that exchange, I was around about clause 13.7, 13.8 or so.

PN1076

MR THISTLETHWAITE: Yes, just bear with me a moment and I will find it.

PN1077

SENIOR DEPUTY PRESIDENT HARRISON: Yes, of the supplementary affidavit. I shouldn't limit myself - it really is the whole of the topic addressed in clause 13 and 14.

PN1078

MR THISTLETHWAITE: In respect of functional negotiations, the clause in the proposed agreement is quite clear, that any proposed increases to rates of pay in terms of functional negotiations will be based on productivity offsets.

PN1079

SENIOR DEPUTY PRESIDENT HARRISON: Yes.

PN1080

MR THISTLETHWAITE: That is well understood by the unions and the employees covered by this document and is certainly well explained at the information sessions relating to the proposed agreement and the process of voting.

PN1081

SENIOR DEPUTY PRESIDENT HARRISON: Yes, thank you.

PN1082

MR THISTLETHWAITE: So there is an undertaking that that won't be used as a flow-on.

PN1083

SENIOR DEPUTY PRESIDENT HARRISON: There's certain specific undertakings that rail agencies are committed to there, included in clause 13.11. We might come back to that, Mr Thistlethwaite.

PN1084

MR THISTLETHWAITE: Yes, I have read that section, your Honour. We give the same undertaking and we adopt the undertakings provided in that section of the affidavit.

PN1085

SENIOR DEPUTY PRESIDENT HARRISON: Mr Thistlethwaite, today we do not have in Court with us each of the affiliates for whom an appearance was announced on Thursday. All of what we have said today is important, but this is very important. I know and accept completely you speak for each of them.

PN1086

MR THISTLETHWAITE: Yes.

PN1087

SENIOR DEPUTY PRESIDENT HARRISON: We may come back to the opportunity being given to them for us to be confident that they have had the opportunity to read the supplementary affidavit of Mr Greenhalgh, the undertakings given in them, this exchange. As I say, please do not for one moment think I doubt at all that you are not appearing with full instructions in relation to any of the matters that could properly arise in this certification hearing, but it might be a matter that at least an opportunity might be given to each of them to speak now or forever hold their peace, if we get this far.

PN1088

MR THISTLETHWAITE: Can I assure the Commission that the only union party to this agreement, proposed agreement, that is not represented here is the CFMEU.

PN1089

SENIOR DEPUTY PRESIDENT HARRISON: I see.

PN1090

MR THISTLETHWAITE: I have reported to an official of the CFMEU on Friday of the Commission proceedings and did receive instructions to again appear today on behalf of that union and to make whatever submissions I feel appropriate in respect of any matters raised in the Commission. I don't wish to make any further submissions in relation to the public interest considerations.

PN1091

Again, I wish to reiterate that we see that as very much in the public interest for the Commission to certify this proposed enterprise agreement. In terms of the statutory requirements in the Act, the unions are satisfied that the proposed agreement does meet the no disadvantage test. No employee will be disadvantaged by the certification of this agreement as an aggregate package of additions.

PN1092

I have highlighted some of the clauses which ensure that that will not occur. We are very much supportive of the dispute settlement procedure contained in clause 8 of the proposed agreement. The Commission will note that that procedure does provide for union involvement at all stages, a process of resolving disputes and importantly provides referral power under section 111AA and section 170LW of the Act.

PN1093

In relation to the process of scrutiny and understanding of the operation of the proposed agreement by union members, we submit that the requirements of the Act have been met and in that respect, we adopt the evidence of Mr Greenhalgh in his affidavit and supplementary affidavit in relation to the process of informing employees of the proposed agreement and its operation, allowing them the opportunity to question the terms of the proposed agreement and, indeed, we could vote on the provisions of the proposed agreement.

PN1094

The Commission will also note that statutory declarations have been filed by the respective unions and through those statutory declarations and they are a statutory declaration of Nick Lowocki, the secretary of the RTBU sworn on 24 May '05, Nick Allan, the assistant secretary of the Australian Workers' Union, greater New South Wales branch sworn in May, Warwick Tomlins, the assistant secretary of the ETU sworn 26 May '05, Andrew Ferguson, the secretary of the CFMEU, Sally McManus, the executive president of the ASU sworn 24 May and Tim Aird, the acting secretary of the AMWU sworn 25 May 2005 and Katherine Bolger, the director of transport of APESMA, also sworn 25 May 2005.

PN1095

Those respective statutory declarations state that the various union officials are satisfied that the agreement has been approved by a valid majority of their members and do consent to the application for certification and in respect to the process, we again draw the Commission's attention to the information sessions conducted on 26 April 2005 to 6 May and the process of independent scrutiny of the ballot conducted by Barry French on 9 May.

PN1096

I don't have anything further to add, your Honours, Commissioner, subject to any questions that the Commission may have, but once again we do see the certification of this particular proposed agreement as very important for the future of the rail industry in New South Wales. If it pleases.

PN1097

SENIOR DEPUTY PRESIDENT HARRISON: Yes, thanks. Now, did someone from the CFMEU or AWU want to say something peculiar to their organisation. Mr Tripodi.

PN1098

MR TRIPODI: In the first affidavit of Mr Greenhalgh marked Rail Agencies 3, there was an agreement by both the AWU and Railcorp to continue to negotiate on certain infrastructure issues which were still to be sorted out by the parties.

PN1099

Basically all we will be seeking is to tender some documents which reflect the resolution of those issues and to essentially rely upon them merely as exhibits, as supplementary material to these proceedings, so that the record of the Commission shows how those issues have been resolved. Now, I would like to hand up three bundles of documents, one for each member of the Commission. They are exactly the same.

PN1100

SENIOR DEPUTY PRESIDENT HARRISON: Do you want these marked as a bundle or separately, Mr Tripodi?

PN1101

MR TRIPODI: Perhaps it is wiser if we have them marked separately, as I take the Commission to them.

PN1102

SENIOR DEPUTY PRESIDENT HARRISON: Indeed.

PN1103

COMMISSIONER LARKIN: In Rail Agency 3, Mr Tripodi, which section are you referring to that is relevant to these documents? Just take me to them.

PN1104

MR TRIPODI: It is in section 12 of that affidavit. You will see that that is entitled further matters concerning the AWU and the ETU. In that section there are a number of infrastructure issues which are agreed by the parties, to be discussed in ensuing weeks and the documents that I will be - that I have just handed up and I will be speaking to are essentially the outcome of those negotiations to resolve those issues.

PN1105

The first document I would like to refer to and which to the presiding member, Senior Deputy President Harrison, I have handed up, the document is a letter, a Railcorp letter addressed to Mr Warren Baker dated 6 June signed by a Howard Powell of Railcorp. I would like to tender that.

EXHIBIT #AWU1 LETTER TO MR W BAKER DATED 06/06/2005

PN1106

MR TRIPODI: Thank you.

PN1107

SENIOR DEPUTY PRESIDENT HARRISON: Just a moment, before you go any further, do these reflect a deal that is done or do they reflect some further discussions that are going to occur on a live issue?

PN1108

MR TRIPODI: No, they reflect a deal that has been done.

PN1109

SENIOR DEPUTY PRESIDENT HARRISON: And does that require the revisiting of the 2005 EBA as filed and presented for certification?

PN1110

MR TRIPODI: It doesn't require revisiting the EBA at all. All it does is, in the affidavit of Mr Greenhalgh, there's a number of supplementary materials that have been tendered. Now, some of those, there may be an issue of clarification, there may be merely an issue of replacement with an accurate document because there were mistakes made in some of that material. All we are doing is handing this up for the purposes of clarification and it reflects the deal that has been done.

PN1111

SENIOR DEPUTY PRESIDENT HARRISON: But it doesn't form part of the agreement that is before the Commission?

PN1112

MR TRIPODI: No.

PN1113

SENIOR DEPUTY PRESIDENT DUNCAN: And it certainly isn't the schedule C matter?

PN1114

MR TRIPODI: Sorry, your Honour?

PN1115

SENIOR DEPUTY PRESIDENT DUNCAN: It is not a schedule C matter?

PN1116

MR TRIPODI: No, not at all.

PN1117

SENIOR DEPUTY PRESIDENT HARRISON: Why are we getting it, then?

PN1118

MR TRIPODI: It is merely tendered for the purposes of clarification in case any issues arise in the future in terms of an argument over the application or interpretation of the agreement.

PN1119

SENIOR DEPUTY PRESIDENT HARRISON: But it is not part of the agreement?

PN1120

MR TRIPODI: No. It is only extraneous materials. I just note that materials such as this were for example tendered in the making of the Rail Infrastructure Corporation Agreement 2002, moving forward. It is merely material that reflects the agreement reached by the parties.

PN1121

COMMISSIONER LARKIN: So some of the material would go to the issue of revisiting classification structures in the agreements that the parties have at the moment, then?

PN1122

MR TRIPODI: Not revisiting, I wouldn't say that, Commissioner. What I would say is basically this material would demonstrate the status quo that exists under for example the situation with the Rail Infrastructure Corporation Agreement which is going to be called up into this agreement and it will make clear the position that the parties have which will assist in dealing with those more complex issues which the Commission has addressed itself to in terms of future agreements done on a - functional agreement, so it is here to basically set out the situation that exists under the current agreement that is called up so that the parties are fully aware of the situation that - - -

PN1123

SENIOR DEPUTY PRESIDENT HARRISON: The situation that currently exists under the current agreement that is called up is in the agreement, no more nor less. It is in it. We know its terms. They may or may not be consistent with this. If they are not, it might be better we don't hear this argument further.

PN1124

MR TRIPODI: Well, they are consistent. They may not be clear or as clear as they should be.

PN1125

SENIOR DEPUTY PRESIDENT HARRISON: Where is the increases in this agreement? You would think I would know exactly where the clause is without having to flick through it. Where are the staggered 4 per cent increases reflected in the 2005 agreement? 11? Thank you. If you would like us to have these documents because in due course there might be an issue that arises that these might assist whichever member of the Commission might be considering it, well, so be it, but I am most anxious that they are not seen in the context of somehow being read in conjunction with the 2005 agreement, because that agreement is what the agreement is and it calls up what the terms of the EBAs are, no more nor less.

PN1126

MR TRIPODI: We accept that, your Honour, so if I could just refer to the first, AWU1, that essentially reflects a situation which - it basically corrects annexure 42 which is in very similar terms. There were errors made in annexure 42 to the Greenhalgh affidavit and AWU1 merely corrects the detail of that annexure. We would also merely like to refer to annexure 36.

PN1127

SENIOR DEPUTY PRESIDENT HARRISON: Sorry, what annexure again was AWU1?

PN1128

MR TRIPODI: Annexure 42 of Rail Agencies 3.

PN1129

SENIOR DEPUTY PRESIDENT HARRISON: I see, yes.

PN1130

MR TRIPODI: And I would just like to refer to annexure 36 of Rail Agencies 3. On the last page of that annexure, there is a document which essentially is taken from the RIC EBA 2002. Under 3, classification streams dealing with metals and engineering, there are three arrows. Those arrows point towards level 4.2 as an upper limit of competency based progression. We merely want it accepted by Railcorp that the upper limit of competency based progression for those three classification streams are in fact level 4.2. If they could confirm that, we would be happy.

PN1131

SENIOR DEPUTY PRESIDENT HARRISON: Mr Kite.

PN1132

MR KITE: My instructions - the purpose of including all of this material in this first affidavit is to indicate a number of discussions which are ongoing between Rail Agencies and the AWU in relation to some matters. Those matters are not yet concluded. We are, of course, committed to concluding those matters as soon as we can, but they need to be concluded comprehensively and with all affected unions. I am not in a position today or now to give the undertaking Mr Tripodi seeks.

PN1133

SENIOR DEPUTY PRESIDENT HARRISON: Mr Tripodi.

PN1134

MR TRIPODI: I would be happy if they undertake to provide the Commission with a final position when they are in the position to give it.

PN1135

SENIOR DEPUTY PRESIDENT HARRISON: Well, perhaps most importantly to you, so you understand, because this documentation need not concern us in the context of what we are being asked to consider and certify.

PN1136

MR TRIPODI: Very well. May I just say for the benefit of Railcorp that the upper limit of competency based progression for these three classification streams at level 4.2 merely reflects what is in the Rail Infrastructure Corporation Agreement 2002. If the provide us the information, we would be happy with that.

PN1137

SENIOR DEPUTY PRESIDENT HARRISON: Thanks.

PN1138

MR TRIPODI: There are three other documents which I have handed up. The first that I would like marked is a letter dated 7 June 2002 to your Honour, Senior Deputy President Harrison's associate in a dispute that occurred in 2002. This dispute related to an arrangement which was reached between the Rail Infrastructure Corporation and the AWU regarding what are known as non-trades construction State award employees and that was an arrangement whereby all employees within that category as reflected in a table which forms part of that correspondence received a historical loading on their rates of pay and that those people be - the arrangement reached was that if employees falling in that category were engaged prior to certification of that agreement which took place on 29 August 2002, certified by Commissioner Larkin, that those employees would have this loading applied to their rates of pay and all employees employed in those categories subsequent to that date of certification would receive rates of pay without such a loading and they are reflected in column 1 of the table attached to that correspondence.

PN1139

Your Honour, Senior Deputy President Harrison, may take some small amount of judicial notice I think of a dispute that was filed recently by the AWU against the Rail Infrastructure Corporation. That matter is subject to continuing negotiations relating to these employees affected by this arrangement and is ongoing. However, given that the dispute is ongoing, the AWU merely wants to tender and put on record the arrangement in detail, as set out in the correspondence in the letter of 7 June 2002, to ensure that the employees affected have their entitlements protected and that there is no lack of material available that sets out what the arrangement was.

PN1140

SENIOR DEPUTY PRESIDENT HARRISON: Who has that dispute?

PN1141

MR TRIPODI: Sorry, your Honour.

PN1142

SENIOR DEPUTY PRESIDENT HARRISON: Who has that dispute?

PN1143

MR TRIPODI: It was referred to yourself, your Honour.

PN1144

SENIOR DEPUTY PRESIDENT HARRISON: The most recent one?

PN1145

MR TRIPODI: Yes.

PN1146

SENIOR DEPUTY PRESIDENT HARRISON: What is happening with it? The consent of the parties hasn't been progressed at all.

PN1147

MR TRIPODI: It has been progressed. It has been listed. The parties are in the course of trying to resolve all the issues. It has been a slow and steady exercise. However, we basically want to preserve the arrangement as best we can by providing enough material relating to these employees and that is why we tender this letter dated 7 June 2002.

PN1148

SENIOR DEPUTY PRESIDENT HARRISON: I don't know that this Full Bench need concern itself with this material and I may or may not concern myself with it in the event it is listed again before me, although that is unlikely.

PN1149

COMMISSIONER LARKIN: This material, Mr Tripodi, it is not relevant to any of the clauses in the agreement that is before us? It is not relevant to 9.6 or 9.8 of the agreement?

PN1150

MR TRIPODI: This material, as well as the other two documents which I will be seeking to tender is relevant to the extent that it sets out under the arrangement that was reached in 2002, those rates of pay which will be applying to employees under this agreement subject to all the processes that we have discussed to date, so it is therefore important in the union's view that an arrangement which has been reached by the employer and by the AWU which sets out the rates that will be applying to employees under this agreement be placed before the Commission.

PN1151

COMMISSIONER LARKIN: So that will be classification rates and I think the bench has already been advised that there will be an application under 170MD to vary this agreement to incorporate, so these form part of the parties' discussions you say when they are looking at this monumental task of dissecting all the agreements that we are going to terminate and that this agreement calls up and then bring what is relevant into this core agreement, one part being classification and rates of pay?

PN1152

MR TRIPODI: Yes, Commissioner, so essentially we feel it is important that given that you have a set of employees that have been dealt with in a discrete way because of an arrangement reached between the employer and the union, that that material be on record in the Commission just as it was with the certification of the previous agreement so that the arrangement and its effects in terms of rates of pay are properly placed before the Commission and clear to both parties and the Commission.

PN1153

COMMISSIONER LARKIN: Correct me if I am wrong. One of the grounds for a multi-business agreement on my understanding is also industrial stability. I raised with Mr Thistlethwaite the intent of 9.6 and this commitment that all this would be done in 9 months and what would happen after that. I suppose I am just starting to get a bit of a concern about industrial stability. I don't know whether the employers, Rail Agencies, have an issue or a dispute in relation to the content of this correspondence, whether it is correct, whether it is committed to, whether it is agreed. I really don't know, but I suppose I just raise with you, given my history, these types of things have the capacity to go - and excuse the pun - off the rails.

PN1154

MR TRIPODI: I would propose, Commissioner, I understand what you are getting at, I would propose that this matter be handled essentially in the same way as AWU1 that has been marked so that if the employer has any issues, it could advise us about them and we could let the Commission know what the situation is, but for us, the situation can only be more beneficial for a document to be placed on the Commission record, setting out an arrangement reached between the parties. I mean, it essentially goes to the same type of issues, I think, Commissioner, that you were raising this morning in terms of the Commission having to have material before it to assist it if there is ever a dispute over such issues.

PN1155

COMMISSIONER LARKIN: I don't know that I want to pull a Full Bench file apart, Mr Tripodi, every time I get a section 99 notification or a 170LW.

PN1156

MR TRIPODI: I think it does assist to somehow clarify an arrangement which in particular relating to these employees is somewhat peculiar to those employees and in absence of having some accurate material before the Commission on the file, it may well lead to industrial disputation. I think it is only of benefit and in the public interest that these documents which reflect an arrangement that relates to a peculiar small group of employees be placed before the Commission.

PN1157

SENIOR DEPUTY PRESIDENT HARRISON: And they should have been incorporated in the 2005 EBA presented for certification and if they are not, I just wonder whether, in fact, the submission doesn't cut across what you are seeking to persuade us.

PN1158

MR TRIPODI: Well, given that there are no classifications at all in the current agreement - - -

PN1159

COMMISSIONER LARKIN: We notice that.

PN1160

MR TRIPODI: - - - we were placed in somewhat of a problem.

PN1161

SENIOR DEPUTY PRESIDENT HARRISON: In the 2002 moving forward agreement, what part of that is peculiar to the AWU classifications and wages and the increases that were then granted under that EBA? I am just flicking through and I can't find it. Do you know?

PN1162

MR TRIPODI: What was peculiar was the documents that we have discussed related to a group of employees only. Now, those employees were within the track structure classification stream which you could find at subclause 14.1. However, given that this peculiar group of employees were, I can put it as a subset of that stream in that they were to have that particular loading applied to them if they had been employed prior to the date of certification of the agreement, rather than creating another classification stream for them, the parties agreed that merely we would hand up an exhibit reflecting their situation in terms of rates of pay.

PN1163

SENIOR DEPUTY PRESIDENT HARRISON: What did you say, clause 14?

PN1164

MR TRIPODI: Clause 14.1 of the Rail Infrastructure Corporation.

PN1165

SENIOR DEPUTY PRESIDENT HARRISON: 14.1? They are employees in the track structure classification group?

PN1166

MR TRIPODI: Classification stream, yes, and so these employees I am talking about where in a way a subset of those people. They would otherwise, if it wasn't for the allowance which applied to them, they would be within that classification structure. However, given the situation due to the arrangement that was reached between RIC and the AWU, were treated in terms of rates of pay applying in a different manner to the employees as demonstrated in the table in 14.1, it was agreed by the parties that we would hand up an exhibit reflecting the table, reflecting their rates.

PN1167

SENIOR DEPUTY PRESIDENT HARRISON: The rates for the relevant persons within the track structures classification streams as reflected in clause 14.1 of the going forward agreement are different to the rates contained in these?

PN1168

MR TRIPODI: That is right.

PN1169

SENIOR DEPUTY PRESIDENT HARRISON: Well, you can have it back,
Mr Tripodi. I am now completely convinced that this is not the occasion for us to be considering this matter. If you raise it elsewhere, so be it, but this is a 2005 agreement that calls up the 2002 going forward agreement. It does not call up any other agreement or any other modification that the parties might have reached between themselves in relation to that agreement.

PN1170

MR TRIPODI: May it please.

PN1171

SENIOR DEPUTY PRESIDENT HARRISON: Is that all you wish to address us on, Mr Tripodi?

PN1172

MR TRIPODI: Yes.

PN1173

SENIOR DEPUTY PRESIDENT HARRISON: Now, when I said you could have it back, I have handed back something I have marked as an exhibit, so that is a bit irregular, isn't it, so whether it assists us or not, I think we have to keep that document that we marked as an exhibit, but I have precluded you from developing this argument further before this Full Bench in relation to the issues we need to consider. May I have back AWU1? Mr Carcary, do you want - I am sorry,
Mr Tripodi, is that all you wish to say?

PN1174

MR TRIPODI: That is it.

PN1175

SENIOR DEPUTY PRESIDENT HARRISON: I hope your issue isn't of a similar nature to Mr Tripodi?

PN1176

MR CARCARY: Certainly, your Honour. I appear in a separate appearance in the case of ..... the CEPU was identified had some outstanding issues and ..... while we rely on the evidence before the Commission and the submissions .... and the terms of the undertakings, we make the same undertakings ..... as
Mr Thistlethwaite and RailCorp have ..... the affidavit of Mr Greenhalgh.

PN1177

SENIOR DEPUTY PRESIDENT HARRISON: Thanks, Mr Carcary. Mr Kite, we might take a short break to decide where we go from here.

PN1178

MR KITE: Can I before the Commission does that confirm that all of the undertakings and commitments given in Mr Greenhalgh's affidavit on behalf of the rail agencies are given for the purposes of section 170LV.

PN1179

SENIOR DEPUTY PRESIDENT HARRISON: Thank you.

<SHORT ADJOURNMENT [4.41PM]
<RESUMED [4.55PM]

PN1180

SENIOR DEPUTY PRESIDENT HARRISON: Mr Kite, at least in relation to the submissions that have been made thus far, do you have anything to say in reply?

PN1181

MR KITE: No, if your Honour please.

PN1182

SENIOR DEPUTY PRESIDENT HARRISON: What we will do is adjourn now to consider the submissions and the what are now I think three applications before us. Several things may occur. We may not need to sit again and publish a decision. We may need to sit again and pursue matters that need clarification or are concerning us. We might send a document raising questions that we wish to be answered by way of a written reply and maybe a permutation of one or other. I regret we can't today inform you what is more or less likely. However, one thing is certain. We will not be in contact with you for the balance of this week.

PN1183

MR KITE: If the Commission please.

PN1184

SENIOR DEPUTY PRESIDENT HARRISON: The Commission now adjourns.

<ADJOURNED ACCORDINGLY [4.56PM]

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #RAIL AGENCIES 4 SUPPLEMENTARY AFFIDAVIT OF MR GREENHALGH, DATED 14/06/2005 AND FIVE ANNEXURES PN696
EXHIBIT #RAIL AGENCIES 5 SUBMISSIONS IN RELATION TO ELECTROLUX PN839
EXHIBIT #RAIL AGENCIES 6 EXAMPLES OF FACILITATIVE PROVISION IN AGREEMENTS CERTIFIED BY THE COMMISSION PN843
EXHIBIT #RAIL AGENCIES 7 FOLDER PN864
EXHIBIT #RAILAGENCIES8 SUBMISSIONS AS TO SPECIFIC QUESTIONS RAISED BY THE FULL BENCH ON TERMINATION OF PRIOR CERTIFIED AGREEMENTS PN981
EXHIBIT #AWU1 LETTER TO MR W BAKER DATED 06/06/2005 PN1105