AG2005/5392, Transcript of Proceedings [2005] AIRCTrans 1822 (5 September 2005)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 12550-1

COMMISSIONER RICHARDS

AG2005/5392

APPLICATION BY EDI RAIL PTY LTD & AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION AND OTHERS
s.170LJ - Agreement with organisations of employees (Division 2)
(AG2005/5392)

BRISBANE

10.07AM, FRIDAY, 19 AUGUST 2005

PN1

MR E MOORHEAD: I appear on behalf of the AFMEPKIU.

PN2

MR D BROANDA: I appear on behalf of the Australian Workers Union.

PN3

MS A COULTHARD: I am appear for Franklin Athanasellis Solicitors on behalf of EDI Rail Pty Ltd, seeking leave of the Commission to appear.

PN4

THE COMMISSIONER: Yes, thank you, Ms Coulthard. Thank you. I have just got a number of faxes that I have received in relation to appearances. Neither the CEPU nor the CFMEU are able to be in attendance today but have advocated the certification of the agreement nonetheless. That said, we will come to the agreement itself rather than deal with the matter in the broad, we will just come to particular issues if that’s the most focused way to do it. There is an issue in relation to compliance with section 170LM of the Act insofar as the agreement is lodged one day outside the statutory period. I have background knowledge of this matter and the fact that it has been subject to some minor delays is explicable in the context but I will allow the parties to put anything to me they want to about that. It's a period of delay of a very minor sort.

PN5

MR MOORHEAD: Commissioner, I found that the delay is actually a matter of one day. The AMWU took responsibility for the preparation of documents and the forwarding of documents to the Commission and given the number of union parties to the agreement and the voting processes undertaken and it took us more than the 21 days to file the agreement. We apologise to the Commission for that.

PN6

THE COMMISSIONER: Don’t worry about an apology as such, its just a statutory provision that specifies which number of days.

PN7

MR MOORHEAD: And we do seek that the Commission exercises its discretion pursuant to section 111(1)(r) of the Act to extend the time.

PN8

THE COMMISSIONER: Yes, be it under 111 or otherwise the non-compliance with section 170LM in the context of the agreement for multiple parties and its history is not an issue that we should serve in any way to void the application and in my view the agreement is properly on foot and should be treated as such. That said, there is some other passing issues before we come to some of the more standard ones and they are - I just noticed that all the statutory declarations preclude or exclude or at least it doesn’t appear to be represented in the way that they have been presented and a response to paragraph 7.7.2 in relation to the specification of the clauses to its empowering nature.

PN9

For my purposes I don’t need to pursue that issue I simply note that I have observed it in the statutory declarations now before me and I in my view clause 23 of the agreement itself is sufficiently clear to specify what the intent of the parties is and should it needed to be subject to any debate or consideration in the future it will and I don’t think the requirements of the statutory declaration are important insofar as they are not requirements of the Act and it's simply the rules of the Commission and I think that sufficient to dispose of the matter.

PN10

Can I just also ask, there are a number of attachments to the agreement including appendix H, the CEO letter. Do these appendices, such as appendix H, do these form part of the agreement that was voted upon or are these ancillary documents that are tendered for the purpose of records?

PN11

MR MOORHEAD: No. We understand that those documents are part of the agreement.

PN12

THE COMMISSIONER: But they do form part of the agreement?

PN13

MR MOORHEAD: And were distributed to the employees.

PN14

THE COMMISSIONER: Ms Coulthard, is that your understanding as well?

PN15

MS COULTHARD: Yes. That is certainly our understanding as well.

PN16

THE COMMISSIONER: Just coming to that issue about how that understanding was expressed. Was there a ballot in relation to the approval of the agreement or was there a mechanism used? I only ask that question because of the nature of paragraph 6.7 in the statutory declarations which refers to a mass meeting held by the union officials. I am relaxed about what method was taken to generate the valid majority and it is more a matter of curiosity than anything else that’s all.

PN17

MR MOORHEAD: I understand that it was done by a meeting of employees chaired by the union officials and it was done by a show of hands.

PN18

THE COMMISSIONER: Right. That's okay. That's all right.

PN19

MR MOORHEAD: To clarify that I understand that was all employees, Commissioner.

PN20

THE COMMISSIONER: Sorry?

PN21

MR MOORHEAD: That was all employees who were provided with opportunity to vote at that meeting.

PN22

THE COMMISSIONER: And the statutory declarations are sufficient to indicate to me that the valid majority, that a reasonable opportunity was provided for purposes of deciding whether to approve or generally approval the agreement and subsequent that requirement was met. Can we just come to clause 21, the employment security clause firstly. My preliminary view, unless the parties want to put something in the alternative to me, my preliminary view, the employment security clause affects the terms and conditions of employment of contractors and specifies that contractors aren’t to be utilised for purposes of reducing the permanent workforce.

PN23

Is that an appropriate way to characterise the general effect of clause 21? And I say that because in my view, my preliminary view, this is a clause which is sufficiently captured in its intention and meaning by the majority decision in the, what is called the - it is sometimes referred to as re TWU or the Australian Air Express and another, decision of the 24 June 2005. Is that - - -

PN24

MR MOORHEAD: Commissioner, we say this, within that decision in that the parties have made it clear the intent of providing the regular - the provisions of the second paragraph and it provides a clear context and purpose for which the clause is being developed and why that clause is being provided. It's not simply to provide wage rates for people who aren’t covered by the agreement but to ensure that when the company does use supplementary labour that the employees are not financially - - -

PN25

THE COMMISSIONER: No, I understand. Look, the reason I mentioned the majority decision in that Full Bench was that because the subclause that was before the Full Bench, it was subclause 10.5 of the relevant agreement and it was headed labour hire agencies and it specified the following:

PN26

Employees or hire labour agencies will be paid the same rates of pay for time worked within AAAE facilities as if they had been a direct employee of AAAE.

PN27

The Full Bench found, the majority found in that Full Bench that that was a clause that was pertaining and they found it so in the context that if they contended that its objective was job security which had a sufficient nexus with a pertaining matter to, to ensure that it me the requirements under section 170LI. I don’t see anything in clause 21 that would enable to differentiate clause 21 from clause 10.5 which was before the Full Bench which the majority found, as I just indicated and that there are no grounds for me to distinguish it otherwise. So in my view clause 21 is a clause that pertains by virtue of the reasoning of the majority decision in the Australian Air Express and Another decision of 24 June 2005 which is a print number of which I've forgotten to - - -

PN28

MR MOORHEAD: Which is PR959284.

PN29

THE COMMISSIONER: 954467 - no sorry, that was the original decision. Sorry?

PN30

MR MOORHEAD: I believe its PR959284.

PN31

THE COMMISSIONER: Good. Thank you.

PN32

MR MOORHEAD: Sorry.

PN33

THE COMMISSIONER: No, thank you. Thank you Mr Moorhead. In fact the clause does other work as well beyond what was in that clause before the Full Bench but its work is such as to simply specify the various arrangements in which contractors can be used. I will ask just for one clarification. It's only for the purposes of assisting the parties in future dispute and it is not strictly necessary for certification purposes to determine it today but perhaps if we are to highlight it, and that is looking at page 16, I'm just interested in the relationship between the third last paragraph, that being starting with the word:

PN34

The use of external contractors

PN35

And the last paragraph on that page which says:

PN36

In the event -

PN37

The third last paragraph refers to external contractors in relation to work traditionally undertaken by EDI Rail and requires the company not to expand the use of those specialist services such that permanent employees of EDI Rail, that they're employment is threatened. The last paragraph however provides for the engagement of contractors in an extended context, as long as there are certain communication of consultation processes fulfilled and I was just wondering what the relationship of those two clauses might be. The answer might be that the extended access to contractors arises when there are changes to purchasing procurement practices specifically, whereas the third last paragraph doesn’t make that context.

PN38

Am I right in assuming that's was differentiates those two paragraphs? And as I said, look, I don’t want to bog the parties down to an elaborate discussion of it other than we may want to simply highlight it and make sure we're aware of it for the purposes of any future issues that arise. It's not a requirement for certification and I don’t require submissions on it for the purpose of certification so the parties are at liberty to say, well, we will highlight that one and be aware of it. Is that as far as you want to go at this point?

PN39

MR MOORHEAD: Yes please, Commissioner.

PN40

THE COMMISSIONER: Yes. Okay.

PN41

MS COULTHARD: Yes. Thank you Commissioner.

PN42

THE COMMISSIONER: Good. Thanks, Ms Coulthard. The issue that I would like to just come to is appendix D and paragraph 6. This is the - I don’t whether you were in a situation to receive the email that I sent around to the parties yesterday, just sending them a copy of the decision of the Federal Court, Moore J and in particular in relation to Mount Thorley so far as it applied to the specification of an order of disengagement if you like in circumstances of a downturn in the business, or as it referred to here, a rundown of work, and it's really that matter is I think the substantial point for discussion today. I have only sent that around yesterday and I'm happy for parties to, if they're not sufficiently prepared to put something to me on that today, to at their liberty, give consideration to that decision. Also whatever submission they want to at the moment that’s - - -

PN43

MR MOORHEAD: Commissioner, I am prepared to put a submission today.

PN44

THE COMMISSIONER: You are in a - Ms Coulthard, are you in a - - -

PN45

MS COULTHARD: Yes, likewise, Commissioner, thank you.

PN46

THE COMMISSIONER: Good. Perhaps if we could proceed that would be good.

PN47

MR MOORHEAD: Thank you, Commissioner. Commissioner, the clause with which the Commission has concern is one that has been the subject of proceedings previously before the Commission in - sorry. The agreement which is currently before you and the stat decs provided at paragraph 7.9 of those statutory declarations that this agreement replaces the Walkers Pty Ltd Certified Agreement 2002. The clause with which the Commission has raised concern is very similar to a clause that was contained in the Walkers Pty Ltd Certified Agreement 2002 and at that time it was appendix C, paragraph (f).

PN48

At that time the first provision, the contractors/labour hire provision in the order of run down wasn’t present in the clause. However it was the subject of proceedings in matter C2003/5289, a section 170LW matter before Commissioner Spencer, and if I can just hand up a copy of that decision.

PN49

THE COMMISSIONER: I must admit, just whilst you hand that up I would just make a comment, I am somewhat curious to know why the clause was necessary in the operation of clause 2, was it, that we're looking at, because in my view clause 21 effectively did the work of effectively quarantining where contractors were to be used and if there was a run down in work, well, I am not too sure how that would necessarily affect the operation of the previous clause because the work in the area in which the contractors are provided the opportunity to work by virtue of clause 21 may continue to exist or it may not continue to exist. So there is an interesting relationship about how clause - how appendix D, subparagraph 6 actually works in reality given how clause 21 actually works.

PN50

MR MOORHEAD: I think that those provisions are consistent but also deal with slightly different groups of persons in that the provisions of the clause, paragraph 6, we would say are directed towards the contract for the supply of labour only, whereas the provisions of clause 21 seems to be directed more towards the provision of specialist services. So it might be for a contract for the provision of a particular job or task rather than the provision of ongoing supply of labour. While the two are definitive in that regard the focus, if one describes the people as external, the description is slightly different in terms of paragraph 21 talks of external contractors and talks about particular skills or equipment which is not available within the company whereas paragraph 6 talks about contractor/labour hire.

PN51

So in that regard, Commissioner, there's a - while we say that they're consistent, and I'll come to that in a moment, that there is a slight change of focus in that it's from those people who might provide a particular service to the manufacturing facility at EDI Rail as opposed to those persons who might be supplied by a labour hire employer who provide labour only to work alongside EDI Rail employees.

PN52

THE COMMISSIONER: Clause 21 though also permits labour for peak periods and so on, doesn't it?

PN53

MR MOORHEAD: Yes, it does. Paragraph 21 - - -

PN54

THE COMMISSIONER: So presumably in a rundown situation, there being no peak work, they wouldn’t be there in any event.

PN55

MR MOORHEAD: Well, given that it describes the class of persons as supplementary labour in a time when there is excess labour, there is unlikely to be a need for supplementary labour. When one looks at the decision of Commissioner Spencer in the matter, in decision given in print number PR939548, in that case there was a dispute over the application of the predecessor clause to that one which is currently before you, Commissioner, and the argument from the union was that the list of priority in that clause was definitive and that the requirements of the employer for separation of persons providing excess labour should be strictly in accordance with that provision.

PN56

The company on the other hand argue that the provisions of paragraph (f) were subject to what was then appendix D which is the employee performance and skills analysis procedure. Appendix D has a successor provision which is in the current proposed certified agreement which is now appendix E which talks about the employee performance and skills analysis procedure.

PN57

THE COMMISSIONER: You are aware, I should just clarify the import of my written question, and that was I don’t have an issue with the hierarchy of the rundown of labour in respect of 6, 2, 3, 4 and 5, that the issue only arises as to whether or not a clause can specify the circumstances in which a contractor his engagement ceases or is termination in a rundown. I don’t have a problem about that.

PN58

MR MOORHEAD: Yes, sorry. I understand that the Commission's concern is that - I must say I haven’t seen your email, it's only been verbally communicated to me, is that clause six could on its face have the effect of saying all labour hire employees must be terminated before proceeding to terminate other employees.

PN59

THE COMMISSIONER: Such that it attracts the reasoning of Mount Thorley.

PN60

MR MOORHEAD: And similar to a similar matter that was before you recently. And we say that this matter is slightly different, Commissioner, in that the process in paragraph 6 is subject to the process in appendix E in that what that clause operates to do, is to say well, we'll undertake a skills analysis of our workforce and determine where our excess skills lie and those employees who have the skills that our business requires and we will attempt first attempt to get - and we will attempt to - and once we work out what those skill requirements are we will then move through that process in order to try and meet those skill requirements.

PN61

So should the employer in this instance say we need a particular skill requirement and we don’t need a second skill requirement, if the requirements in the rundown are not met under 6, paragraph 1, in terms of labour hire, the employer still has the right to maintain that labour hire personnel and terminate a casual employee or a fixed term employee.

PN62

THE COMMISSIONER: I see. You're saying the hierarchy of the rundown if you like is subject to maintaining the satisfactory skills matrix for the business at the time?

PN63

MR MOORHEAD: Essentially, Commissioner, we say the decision of Commissioner Spencer, in that case the matter in dispute was between the last two categories of persons, the volunteers and the permanents, was that the employer had the right to refuse persons volunteering for redundancies and proceed to terminate persons who were permanent employees not wishing to be made redundant based on the company's employee performance and skills analysis procedure and the requirement for the company to maintain its skill base. We say that the way the clause operates is that that's the order that should be followed but it's subject to the employer being able to meet its requirement to maintain a skill base in that it may proceed to terminate casual employees before contractor labour hire employees if they cannot rundown their skills - - -

PN64

THE COMMISSIONER: I see. It still has some implications for clause 21, because say you've got a contractor who is working on maintenance of a piece of original equipment, and that's one of the provisions provided for if I recall in clause 21 and then there is a rundown of business occurs. Now, theoretically that’s work that’s being done by a contractor of a specialised nature for the purposes of clause 21 and which is provided for by clause 21. But would that, in a rundown, would that contractor have to leave because of the hierarchy? You see that's - you're saying, no, because in fact clause 21 in appendix E would require the retention of the skills for the business at that time.

PN65

MR MOORHEAD: Yes.

PN66

THE COMMISSIONER: Yes. So is that the proper construction do you think?

PN67

MR MOORHEAD: That’s the way we say it operates that and initially we actually argued in the negotiations for the 2002 agreement and in the matter before Commissioner Spencer, we argued to the contrary and we were unsuccessful in that matter and coming to these negotiations the parties - - -

PN68

THE COMMISSIONER: Well, I have to say that if the issue takes on a different ilk though, if you talk about the gap, the difference between taking volunteers and permanents, I can see it hurts. But I don’t have to trouble myself with that, it's only the first level that is for the certification issue.

PN69

MR MOORHEAD: Yes. In terms of that order we had a different view to that which we are putting forward now, but we accept the decision of Commissioner Spencer and the decision of Commissioner Spencer is the bases to which the parties proceeded to the current negotiations.

PN70

THE COMMISSIONER: Okay.

PN71

MR MOORHEAD: We accept that there may be circumstances where the employer will need to keep employees in a category 1 and move to a category 2 for the purpose of - - -

PN72

THE COMMISSIONER: Yes. You're saying, I mean, that hierarchy is really in -perfect circumstances this is what might have effect but the reality would of the skills requirements of the business would mitigate the operation of that hierarchy.

PN73

MR MOORHEAD: Well, yes, that's our position and in a sense it operates in an if all else is equal type process in terms of the company's operational requirements.

PN74

THE COMMISSIONER: So I'm not to read it - in essence I'm not to read it on its face?

PN75

MR MOORHEAD: We say that the clause on its face - - -

PN76

THE COMMISSIONER: Needs to be read subject to clause 21 and appendix E.

PN77

MR MOORHEAD: It does and where it talks about the following order will be observed it talks with respect to the implementation of the termination redundancy. Rather than saying, as in the Bundaberg Foundries decision, where the order was unequivocal, it said, labour hire will depart. It talked about a requirement on the employer to terminate contracts. In this case it talks about the implementation of the termination rundown procedure for which the parties developed the employee performance and skills analysis procedure. In this instance, I think, the paragraph 6 in appendix D deals with a particular type of contractor, Commissioner, and that is the labour hire contractor.

PN78

To have a contractor to be found within that process essentially limits that to persons who are providing labour on a similar basis to - - -

PN79

THE COMMISSIONER: You're talking more about the supplementary labour force in a peak period time scenario, which in any event would have in its own right probably would have disappeared well before this issue, yes.

PN80

MR MOORHEAD: Well, yes, particularly we say it's the case Commissioner, particularly given that the employer would have to pay redundancy to permanent employees, but also the parties understand the practical effect and the practical requirement of this industry to maintain a skills base in a regional community like Maryborough. Once appendix D is applied both permanent employees who make up the core skills base of an employer are those who are likely to be maintained in any rundown of work rather than any labour like person supplied to the employer through labour hire.

PN81

THE COMMISSIONER: Where clause 21 says:

PN82

The unions party to this agreement agree that the company may use external contractors to carry out such work where particular skills and/or equipment is not available to the company. The scope of work referred to above includes capital works, equipment, supplies, including maintenance warranty contracts and subcontracting, a small hand tool repairs as agreed, drafting and office rated service and other specialist services.

PN83

Well, presumably in a rundown where they're required they're retained. Where they're required for the purposes of appendix E they're retained irrespective of the order of rundown.

PN84

MR MOORHEAD: Yes, and generally they would be encumbered in the specialist services or specialist skills type category rather than working side by side.

PN85

THE COMMISSIONER: Okay. Can I just - I don’t want to interrupt your submission though, but I just wouldn’t mind knowing whether Ms Coulthard is making a submission in the same terms or is different or - - -

PN86

MS COULTHARD: No, Commissioner, my submission is more or less in the same terms as Mr Moorhead's is saying.

PN87

THE COMMISSIONER: Thanks, Ms Coulthard. Well, I am just wondering whether then it might be - you see, what I am being asked to do then is to, I have to say at least as I see it, not to take appendix D to paragraph 6 on its face but to read it in the context of clause 21 and appendix E which in effect does mitigate and impact upon the order of rundown and I am just wondering whether you might want to just talk together for a few minutes about a common way of characterising how this clause is to be read, such that I can capture the full meaning of it for the purpose of characterising it and differentiating it from as was in the Bundaberg Foundries matter as it appeared in the Mount Thorley decision by Moore J.

PN88

MR MOORHEAD: That is I suppose the hurdle, we are facing, Commissioner, in that, this clause has history both in relationship with other terms but also those previous, the clause from the previous agreement and the decision before Commissioner Spencer which was a matter which went on for months and was in arbitration between the parties.

PN89

THE COMMISSIONER: It might be worth here just having a few minutes to properly align the characterisation with a view to the fact that who knows what could happen in the future as well. So do you want a few minutes just to talk about that?

PN90

MR MOORHEAD: Yes please, Commissioner.

PN91

THE COMMISSIONER: Okay, we might adjourn for 10 minutes, will we, just whilst you talk it through? Okay, we will adjourn for 10 minutes. Sorry, before I do so, Mr Broanda, I haven’t asked you, are you aligned with the school of thought, if I can put it that way?

PN92

MR BROANDA: Commissioner, I don’t have anything to submit that would oppose anything that has been put thus far.

PN93

THE COMMISSIONER: Okay. Well, I will call that alignment with that sought of thought and I will leave you all to confer again for a few minutes. We're adjourned.

<SHORT ADJOURNMENT [10.39AM]
<RESUMED [11.02AM]

PN94

THE COMMISSIONER: Thanks everyone. How did we go?

PN95

MR MOORHEAD: Commissioner, the parties have put together a statement that records their common understanding. If I can just read that:

PN96

The parties have a common understanding that the order for implementation of termination redundancy should be read subject to the provisions of paragraph 5 of appendix D, appendix E and clause 21. This process requires EDI Rail first to determine its operational requirement by reference to the necessary classifications of a number of employees based upon skills performance and conduct assessed in accordance with appendix E (and appendix F should the parties agree on a further process). If the employer's operational requirements are not met in the application of this process to one of the categories listed in clause 6 the employer may proceed to apply the process to the subsequent category without being required to terminate employees in the initial category.

PN97

THE COMMISSIONER: So again, am I right in assuming that the hierarchy is dependant on whether the company has the available skills that it requires?

PN98

MR MOORHEAD: Yes.

PN99

THE COMMISSIONER: Yes. So the real test of the order is as a skills based order, a skills needs based order, is that - - -

PN100

MR MOORHEAD: Yes, sir. That's one of the key matters is the skills, but in terms of the those skills the parties also recognise issues of housekeeping and working unsupervised and following verbal instructions and productivity in those matters as well as part of that skills analysis. The appendix F, Commissioner, of the proposed agreement also provides that the parties will discuss a new selection criteria for redundancy as a matter of priority for the agreement.

PN101

THE COMMISSIONER: So what you have provided me then is a clarification of the operation of particular clauses, of the interaction of particular clauses of the agreement and the joint submission that's been put to me is that these clauses cannot be read on their face out of their context with the other interacting clauses and appendices?

PN102

MR MOORHEAD: Yes.

PN103

THE COMMISSIONER: That's essentially as a broad big picture of how it works.

PN104

MR MOORHEAD: In terms of the picture we rely on, we make those submissions about the history of the clause as well.

PN105

THE COMMISSIONER: Okay.

PN106

MR MOORHEAD: Essentially we say that once the Commission has that information the matter does fall on the permissible side of the spectrum between Moore and Cox's case.

PN107

THE COMMISSIONER: Well, I think quite clearly on the basis of the submission that you've put to me as to the clarifying the operation of the agreement, it's a clause that quite clearly is differentiated from the clause that was before Moore J in Mount Thorley and also is differentiated substantially from the - or in the same terms as the clause that was before in the Bundaberg Foundry Limited Agreement. I think it was distinguishable for those reasons. For reasons that the decision making as to the order of redundancy is in effect one based on a number of criteria including the required skills at the time in that what appears to be an offending clause at paragraph 6 of appendix D.

PN108

It must be read subject to those requirements as well as the permissible use of contractors which is provided for in clause 2 and as such we are now, as a consequence to that, we are dealing with a scenario which is substantially distinguishable from those other scenarios to which I just referred. I cut across you I'm afraid, did I?

PN109

MR MOORHEAD: No, Commissioner.

PN110

THE COMMISSIONER: That was your submission?

PN111

MR MOORHEAD: That was what we did.

PN112

THE COMMISSIONER: Okay. Ms Coulthard, is that adopted - - -

PN113

MS COULTHARD: No, I have nothing further to add.

PN114

MR BRONDA: Commissioner, I have nothing I could add.

PN115

THE COMMISSIONER: Okay. Well, on that basis what I will do is I'll proceed to certify it and I will tell you some of the procedural issues. In my view the agreement that is before has met the requirements of the Act and the rules of the Commission insofar as I require them to do and there has been some further discussion earlier on in relation to some of the rules matters. There are issues on the face of it which cause concern but those concerns have been allayed by the purposes of the discussion we have had and the clarifications as to the operation of the agreement which have been provided to the Commission as a consequence of the common position of the parties. On that basis I will certify the agreement to operate from today's date. Just for the moment I have lost the nominal expiry date.

PN116

MR MOORHEAD: Clause 24.

PN117

THE COMMISSIONER: Is it 24?

PN118

MR MOORHEAD: Sorry, the nominal expiry date is one thing that the parties - the clause is a little strange, clause 24.1. Commissioner, it talks about it operating for a period of three years from the 27 March 2005. We say that and the statutory declarations from both the employer and the unions provide that the expiry date should be the 27 March 2008. What that clause does is effectively records the parties agreement to make any pay rise. The pay increase is effective from dates preceding today's certification.

PN119

THE COMMISSIONER: Is that the common position of the parties here today?

PN120

MS COULTHARD: Yes that's the position and that's been covered.

PN121

THE COMMISSIONER: So on the basis of that submission the duration of the agreement is until the 27 March 2008, is that the intended positional date?

PN122

MR BROANDA: 26 March I think.

PN123

THE COMMISSIONER: Sorry, it operates until the 27 March, that is as
Mr Broanda rightly says, it expires at midnight on the 26th. But that said, pursuant to section 24.1 the Commission certifies the agreement to operate from today's date through until the 27 March 2008. For the purposes of the processing of this agreement two issues arise. One, I will ask for transcript of this matter to be available urgently and I will extract the clarification, the joint clarification of the common intention of the parties as to the operation of the various clauses and the appendices we've considered. I will include those, that common position as enunciated by Mr Moorhead in the certificate so that will cause any concerns anyone has who peruses the agreement, that the clause was considered and dealt with and is to be constructed thus and will not give rise to as a consequence, hopefully to any legal debate in the future.

PN124

Because the agreement has a number of paper hard copy appendices which aren’t able to be processed within the usual word format I think we might have to revert to the more conventional hard copy mail out in relation to this matter. We would usually deal with it, expedite it later today by way of emailing out the word version of the agreement with completed certificate, but we may have to resort to the old practices for this matter. Are there any issues? Okay. Well, this brings to an end a very long process. Thanks for your help. Thanks for your submissions. We are adjourned.

<ADJOURNED INDEFINITELY [11.11AM]