AG2004/8848, Transcript of Proceedings [2005] AIRCTrans 272 (7 February 2005)

1800 534 258

TRANSCRIPT OF PROCEEDINGS

---

Workplace Relations Act 1996 10276

SENIOR DEPUTY PRESIDENT CARTWRIGHT

AG2004/8848

s.170LK - agreement with employees (division 2)

APPLICATION BY ENDEAVOUR PETROLEUM PTY LTD
(AG2004/8848)

SYDNEY

10.03AM, THURSDAY, 27 JANUARY 2005

Continued from 18/1/2005

PN44

THE SENIOR DEPUTY PRESIDENT: Of the SDA which was given leave to intervene under section 43(2) is not in attendance this morning. The matter was, to my knowledge, properly listed and notified to the SDA. My chambers has heard nothing from Mr Ryan this morning. There's been a change in court room from 14A to 12A this morning but my other associate is up at 14A to direct him, should he appear there, down to here. She's just appeared at the door and shaken her head indicating that Mr Ryan has not arrived so far. So, Mr Thompson, I'm in your hands?

PN45

MR THOMPSON: Thank you, your Honour. The only, as you correctly say, there's no change to appearances barring the witness today is the lawyer,
MR J ARTHURSON, is here in case he could add any assistance to the Commission in considering the facts of the matter and is available if that is a requirement. Regardless of Mr Ryan's non appearance this morning I would request that the Commission proceed to consider the matter and determine the application as it stands. As you have already received a volume of information regarding the application I seek not to go back through that, only to address where questions are still within the Commission's bind as to whether the agreement has satisfied all of the requirements of the Act both in division 2 and division 3, then I would be falling back to address those questions and provide further clarification and detail regarding any aspect that might be under question.

PN46

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Thompson. I do have a number of questions. The first one relates to whether the agreement is made for a single business. Now, it refers to the employer company in the document that is after the cover, Agreement Information Sheet Prepared for the Assistance of the Australian Industrial Relations Commission, under the business. It says:

PN47

The employee company currently operates BP Service Station franchise sites in Victoria.

PN48

And then further on there is a reference to franchise sites. Am I to take it that Endeavour Petroleum Limited is the franchisee?

PN49

MR THOMPSON: Yes, Endeavour is the single employer. They employ all of the employees who will be covered by the terms of the agreement and who work at sites either entirely owned by them, BP Service Stations either entirely owned, I believe that Endeavour Petroleum is the headless oar of two sites where BP, the parent company, actually owns the petrol station but Endeavour operates the petrol station and employs the staff who work there.

PN50

THE SENIOR DEPUTY PRESIDENT: So you've confirmed what the papers seem to be indicating, that Endeavour is the direct employer of all the people who are to be covered?

PN51

MR THOMPSON: Yes, that is correct.

PN52

THE SENIOR DEPUTY PRESIDENT: And Endeavour has a franchise and/or management arrangements to operate a number of sites and consequently on that basis meets the requirement of a single business? Sorry, that's a question, yes?

PN53

MR THOMPSON: Yes, that is correct. We strongly submit that there is no question as to whether or not there is only one employer and one business as required by the Act.

PN54

THE SENIOR DEPUTY PRESIDENT: Thank you. Now, you've provided material essentially directed, I take it, to whether the agreement passed the no disadvantage test. Can I take you to attachment 2 which essentially is comparing the wage and benefit rates, if I can put it that way. There's a reference to attachment 2 being compiled on the worst case scenario. That reference is in that agreement information sheet package and it says:

PN55

The legal minimum pay rates under the agreement are loaded to include applicable penalties, loadings, allowances, entitlements otherwise payable under the award under a worst case scenario application.

PN56

And it goes on. Then if we turn to the first page of attachment 2, I've confirmed that the rates in the first box on that first page are indeed the award rates, but then it comes down and there's a shaded box with two lines, number of PH, hours per PH.

PN57

MR THOMPSON: Yes, your Honour.

PN58

THE SENIOR DEPUTY PRESIDENT: That's under a sub heading "average". Can you explain to me what that indicates and how that relates to the figures that are then compiled comparing to the award?

PN59

MR THOMPSON: Yes, your Honour. What this is referring to, and I might very quickly just step away from attachment 2 and make a more general description of what is being achieved by the agreement.

PN60

THE SENIOR DEPUTY PRESIDENT: I think I understand how that works having been through the award and done a comparison.

PN61

MR THOMPSON: You can see that cashing out, we're attempting to create a single hourly rate and provide to the employees all of the entitlements that would have been paid under the award but within a higher loading, for want of a better term, single hourly rate.

PN62

THE SENIOR DEPUTY PRESIDENT: And that appears to be based on the casual rates?

PN63

MR THOMPSON: Yes, it does, yes.

PN64

THE SENIOR DEPUTY PRESIDENT: Yes.

PN65

MR THOMPSON: And in doing so the agreement at clause 15 provides parameters which have been used to determine the number of hours that employees can be required to work, ordinary hours that they can be required to work, on weekends and public holidays.

PN66

THE SENIOR DEPUTY PRESIDENT: Yes.

PN67

MR THOMPSON: Those figures in there are representative totals on an annual basis.

PN68

THE SENIOR DEPUTY PRESIDENT: I think it's clause 16, isn't it?

PN69

MR THOMPSON: Sorry, clause 16.2, or 16 is the correct clause and clause 16.2, for example, specifies that 30 hours can be worked on public holidays in a 52 week period and that 16.3 specifies that 156 hours on weekends.

PN70

THE SENIOR DEPUTY PRESIDENT: Yes.

PN71

MR THOMPSON: Now, those figures have been used within attachment 2.

PN72

THE SENIOR DEPUTY PRESIDENT: Okay, the maximums?

PN73

MR THOMPSON: Yes, the maximums indicate the way in which the rates have been calculated. The column or the row to which you were referring under the title "average", number of public holidays, is five days and then hours per day is six hours. So we're talking about 30 hours worked on public holidays as specified in clause 16.2 of the agreement. The loaded weeks to the right of the number of PH, 26 weeks, indicates that 26 weekends can be worked, an average of six hours per day - - -

PN74

THE SENIOR DEPUTY PRESIDENT: Before you go on, what's PH stand for?

PN75

MR THOMPSON: Public holidays, number of public holidays.

PN76

THE SENIOR DEPUTY PRESIDENT: I see, thank you.

PN77

MR THOMPSON: And hours per public holiday.

PN78

THE SENIOR DEPUTY PRESIDENT: Yes.

PN79

MR THOMPSON: And then the weeks to the right indicates how we have calculated the 156 hours over the year. So it's 26 weeks at six hours per weekend, giving a total of 156 hours.

PN80

THE SENIOR DEPUTY PRESIDENT: I see, so the way that's to be read is that the input used in the table below is five public holidays, six hours per public holiday. There are 26 loaded weeks where 38 hours per week are worked.

PN81

MR THOMPSON: Yes, that's correct.

PN82

THE SENIOR DEPUTY PRESIDENT: Right.

PN83

MR THOMPSON: And there's a table below. The table below then shows the commensurate amount of pay that would have accrued under the award and the amount of pay paid under the certified agreement according to the rate in the certified agreement. In the final row of that table you see the annual totals with a small advantage on an annual basis under the certified agreement and then those annual totals have been converted to an hourly rate. The intention is that for a long period of time my firm has facilitated Australian Workplace Agreements for similar businesses such as this, and indeed, the Commission has approved several hundred of those AWAs and on similar terms. The way in which we had to show the way in which these rates were calculated was using the Office of the Employment Advocate's calculator which roughly calculates things in the same manner as we have done on this page. We have attempted to provide a spreadsheet and analysis which gives the Commission full disclosure of all of the entitlements under the award and the way in which the pay or the agreement has been calculated.

PN84

THE SENIOR DEPUTY PRESIDENT: Yes. Well, when the introduction says the comparison has been done on a worst case scenario, what then is the application of average?

PN85

MR THOMPSON: It's the average number of hours on five public holidays. As you can see, it could be this 30 hours worked on public holidays in a year. We have then tried to convert it into an average daily amount for the purposes of calculating the rates and providing a sort of outline of how it's been put together. It could have easily just been 30 times the hourly rate under the award for public holidays, rather than a daily amount. We've just averaged it into a daily amount. The totals are the important factor.

PN86

THE SENIOR DEPUTY PRESIDENT: Right. So average doesn't refer to the average across all of casual employees, for example. Rather what you're putting to me is that you've taken the maximum that is available under the agreement and that box referring to average is simply the way it's then put into the table?

PN87

MR THOMPSON: Yes, correct.

PN88

THE SENIOR DEPUTY PRESIDENT: I see. So it's not an average casual employee or average hours among the casual employees, for example?

PN89

MR THOMPSON: No. It's simply for the purposes of calculating the rate on a daily basis, we've created an average, but it's not reflective of any sample of employees. The hours themselves in the agreement have been put together, the parameters of the agreement have been put together taking into account the operating requirements of the business, but the worst case scenario isn't intending to reflect any particular employee or any average employee. The agreement itself provides for ordinary hours and overtime hours and this is simply showing how the ordinary hours and the rate of pay for ordinary hours was calculated.

PN90

THE SENIOR DEPUTY PRESIDENT: Yes, thank you. Now, the statutory declaration refers to 79 employees of which eight are part time and 71 are casual. But when we come to the agreement it's a little hard to work out what form of employment applies here. In other words it doesn't seem to be part time or casual as defined by the award. It seems to be a different category of employment. Can you explain to me how all that works?

PN91

MR THOMPSON: Yes, absolutely, your Honour. What has occurred within this business is that they have for many years been operating under the Victorian State Sector Minimum, a non penalty environment, which provided a great deal of flexibility for the employer to offer both part time employment and casual employment, but without any strict or defined limits or conditions on the type of part time employment that was offered. Over the years a handful of employees have been provided with part time employment, that is, regular employment, but under the terms of engagement which provide the very flexible rosters and hours.

PN92

As a matter of fact the terms of engagement that led us to the employment contracts for these employees state that they may be required to work anywhere from zero to 40 hours on average per week. So those conditions for part time are very different to the types of conditions of part time as defined under clause 6A of the Vehicle Industry Award. From 3 January when the Vehicle Industry Award was declared in Victoria as a common rule award, the business has been bound by that award and by the terms and conditions that it applies in relation to part time.

PN93

Knowing that this was going to be the case the employer looked at those terms and conditions of employment for part time employees and noted that, although their existing part time employees may be termed part time under the sector minimum, they do not meet the part time requirements of the award. Under clause 6A of the award it is required that employees have fixed rosters, fixed minimums, that the starting times and finishing times, the break times, the days of the week and the hours to be worked each day are all agreed in advance and where there is any amendment to those hours, if they are extended, then the extended hours of pay is overtime hours.

PN94

The award also provides that all of those conditions must have been agreed the day the employment began. Now, because these employees, existing part time employees, have been working for a period of time and have not had those conditions agreed in advance, or those conditions were not agreed at the commencement of their employment, this employer is actually in breach of the award terms and conditions regarding part time. Thankfully the award is instructive as to what you should do in the circumstances and in clause 6A(g) it says that:

PN95

Where an employee does not meet the definition of part time employment they must be paid as a casual employee.

PN96

Paid as a casual employee but employed, I would presume from the words of the award, but employed with permanency as a part timer. Now with all of that involved and given that the commercial consequences of this legislative and legal change to the business could have been quite catastrophic and could still be quite catastrophic if this agreement is not certified and does not become the primary instrument of employment within the business, the employer has put together an agreement that maintains conditions of employment as they are currently provided in that people will still have permanency and, indeed, the majority of employees, the vast majority of employees who are currently casual under the State Sector award will be award as permanents under the terms of this agreement.

PN97

However those employees who were defined as part time under the State Sector Minimum and who would, by virtue of the award, have to be paid as casuals, even though they were technically classified as part time, they will be paid as casuals under this agreement but they will retain permanency. Now, what we submit is that the agreement provides the vast number of employees with improved terms and conditions, i.e. permanency and a higher rate of pay and maintains the permanency of those people who already had it, but on slightly different terms and conditions.

PN98

The agreement itself also provides at clause 3.3 the ability for the employer to offer AWAs in addition to the certified agreement. For that handful of employees who were part time under the State Sector Minimum and who would now be covered by this agreement there is the intention of the employer to offer them Australian Workplace Agreements should they wish to maintain their access to annual leave and sick leave in addition to the benefit of permanency. In that way this agreement is providing a commercial reality which allows the employer to offer all of the employees who were employed under the State Sector Minimum ongoing permanent employment under the terms of an industrial instrument which is more flexible in the certified agreements, and it also provides the employer the ability to offer additional terms and conditions specifically suited to individuals under the terms of AWAs.

PN99

THE SENIOR DEPUTY PRESIDENT: Mr Ryan, good morning.

PN100

MR RYAN: Good morning, my apologies for being late. I was detained by aircraft that had to have tyres replaced.

PN101

THE SENIOR DEPUTY PRESIDENT: I see, yes. Well, not knowing where you were and noting that the matter had been properly listed and placing sentries at 14A to divert you here should you arrive there we've begun anyway and Mr Thompson is answering some questions. Yes, go ahead, Mr Thompson?

PN102

MR THOMPSON: Sorry. In that way, your Honour, as you said, the agreement does seem to contain what in my terms would be called a hybrid of employment and quite intentionally so, because that hybrid of employment in those terms and conditions contained and agreed to by a majority of employees allow the employer to continue to operate, continue to offer the same number of employees quality employment opportunities and also allow those people who were previously on casual engagements, it provides them with permanency and flexibility.

PN103

THE SENIOR DEPUTY PRESIDENT: The elements of the hybrid you describe appear to be that people who would be classified as casual under the award here enter into what's described as a permanent continuing employment relationship are paid rates which are comparable to rates in the award which incorporate casual loadings, but actually work less than full time hours?

PN104

MR THOMPSON: Yes.

PN105

THE SENIOR DEPUTY PRESIDENT: Yes, under 6.1 they're engaged to work less than 38 ordinary hours on average per week on various rosters or engagements. Just following that through, under clause 16.6, the clause says, and that's a clause you earlier referred to, clause 16, Work Parameters Weekends, Public Holidays and Late Nights, 16.6 says:

PN106

For employees working less than 38 hours per week on average, limits of work patterns contained in this course will be adjusted to be proportionate to the number of ordinary hours the employees are usually engaged to do compared to 38 hours.

PN107

I noted particularly for employees working less than 38 hours per week on average, how does that relate to clause 6.1 which says that these employees who thereafter have a permanent, continuing employment relationship are engaged to work less than 38 ordinary hours on average per week, how do those two interact?

PN108

MR THOMPSON: They interact in a way which I believe would make at least one of them redundant because they, in essence, are repeating the same thing. Clause 16.6 states that - the intention of it is to provide those limits of working patterns as set out within that clause, 30 hours on public holidays and 156 hours on weekends, will be reduced pro rata to the number of hours actually worked, i.e. that where an employee is working 19 hours a week, the maximum number of public holidays worked, ordinary hours, would be 15 hours and likewise the number of weekend hours would be reduced by 50 per cent also. All of this would be monitored by the employer using their existing payroll system which shows employee and the hours and days upon which they work and would leave a total number of hours on these days.

PN109

THE SENIOR DEPUTY PRESIDENT: But 16.6 appears to contemplate that employees can work more than 38 hours a week, can't they?

PN110

MR THOMPSON: Yes, they can, but that would be overtime and would automatically be governed by the overtime penalties under clause - - -

PN111

THE SENIOR DEPUTY PRESIDENT: I see.

PN112

MR THOMPSON: Clause 14 provides overtime, that is hours worked in addition to ordinary hours.

PN113

THE SENIOR DEPUTY PRESIDENT: So what you're saying is under this hybrid employment model all of the employees are engaged to work less than 38 ordinary hours on average per week, but the operation of the flexible rostering that you referred to can result in employees working more than 38 hours a week on average?

PN114

MR THOMPSON: Well, probably not on average.

PN115

THE SENIOR DEPUTY PRESIDENT: Sorry, without putting words into your mouth, you've explained that that would be on overtime?

PN116

MR THOMPSON: Yes, they would be paid overtime, if they were to work over 38 hours per week on average.

PN117

THE SENIOR DEPUTY PRESIDENT: How does that then get factored in to the comparison in attachment 2?

PN118

MR THOMPSON: The comparison in attachment 2 doesn't show overtime simply because it's just presumed that overtime will be paid at the penalty provisions. Clause 14.1 also states that employees will not be directed by the employer to work overtime, so that the overtime worked would only be worked where they had put themselves forward as being available to do additional hours over and above what they were getting.

PN119

THE SENIOR DEPUTY PRESIDENT: And the overtime rate that would be payable under this agreement, how does that compare to the overtime arrangements in the award?

PN120

MR THOMPSON: It would be time and a half for the first two hours and double time thereafter.

PN121

THE SENIOR DEPUTY PRESIDENT: I think it's the first three hours, isn't it, 14.2?

PN122

MR THOMPSON: Sorry, first three hours. The clause 6 sub section 4 of the award specifies the way in which overtime is paid under the award.

PN123

THE SENIOR DEPUTY PRESIDENT: Yes, it appears to be a flat rate.

PN124

MR THOMPSON: It seems to be an hourly rate. Although there is an hourly rate listed there in the award, my calculations of it show that it's time and a half, it's equivalent to time and a half of the ordinary hourly rate, just representative as an hourly figure. Now, they are calculations just done, although I think we also did them some time ago. I'd need to refresh my memory, but that is my belief at this stage, but I'd have to have another look at it, but my calculations are that all of those hourly rates given represent time and a half.

PN125

THE SENIOR DEPUTY PRESIDENT: Yes, it appears to be, just on one calculation and by inspection, appears to be just a little more than time and a half. Yes. Thank you. Anything more you wanted to add?

PN126

MR THOMPSON: No, only if there are any other questions, then we'd be happy to deal with those. If you would like me to have a closer look at those overtime rates, that's fine.

PN127

THE SENIOR DEPUTY PRESIDENT: Thank you. Well, Mr Ryan?

PN128

MR THOMPSON: If it please the Commission.

PN129

THE SENIOR DEPUTY PRESIDENT: Thank you. Mr Ryan, since we hadn't heard from you and noted that the matter had been properly listed we commenced anyway, but I must admit I'm not surprised at the difficulties of travelling between Sydney and Melbourne that there was a little glitch after Australia Day. I thought you might have been up until six minutes to midnight watching Lleyton Hewitt or something.

PN130

MR RYAN: No, no, but I must admit it's the first time I've had a plane delayed because they had to change two tyres, and they announced that they had to change one on either side of the plane which means they couldn't change them simultaneously and it takes 45 minutes to change a tyre. They obviously have the same difficulty I had with changing tyres on a car, a bit less than 45 minutes at times, and I apologise for the delay, but I was booked on a 7 o'clock flight thinking I had ample time to get up here and once that was delayed the 7.30 flight was already fully booked and they wouldn't take any further passengers, so those of us on the 7 o'clock flight simply sat around till 8 o'clock until it left.

PN131

THE SENIOR DEPUTY PRESIDENT: I understand the issues. Well, as you would understand I had a number of questions which Mr Thompson has responded to. You haven't had the benefit of hearing all of the answers, or knowing all of the questions, but we started or I started by observing that in this case the SDA had been granted leave to intervene under section 43(2). Mr Thompson has put what he wishes to in support of certification of the agreement. What would you like to put to the Commission?

PN132

MR RYAN: The first thing, your Honour, before making formal submissions is that we wish to cross-examine the plaintiff's statutory declaration to lead some direct evidence from Mr Anderson in relation to this matter which we think is relevant, it certainly will go to issues in terms of 170LK as to whether or not matters were properly dealt with under that condition of the Act and also under 170LC and 170LU. So that the first aspect of our case would be to cross-examine Mr Anderson. I notice that he is present.

PN133

THE SENIOR DEPUTY PRESIDENT: Now, just remind me because it's been an active period since we were last together. The union argues what in relation to the agreement?

PN134

MR RYAN: We didn't say on the last occasion either.

PN135

THE SENIOR DEPUTY PRESIDENT: Yes.

PN136

MR RYAN: We - - -

PN137

THE SENIOR DEPUTY PRESIDENT: Yes, I noticed you were very careful.

PN138

MR RYAN: Yes, the argument, or in our capacity as representing the employee who's authorised us to appear in this matter and on the basis of representing our members in this matter, the position of the union is that the agreement does not comply with the provisions of section 170LK and in that sense there is not a proper application before you under section 170LK. The provisions of 170LK are mandatory provisions, each one of them has to be met for there to be a valid application before the Commission. That's well and truly established by umpteen Full Bench decisions of the Commission and on that basis we say, look, there's not a valid application before you. If however you find against us on that and say that there is a valid application then we would say that there are aspects in relation to the operation of 170LU and LT on which we would say you should be satisfied that the agreement should not be certified and we'll go through those.

PN139

I will, in particular, I'll touch upon the no disadvantage test because that's quite clearly a major issue, but also in relation to 170LU(8) we say in particular that there's at least one reason you should refuse to certify, and that is in relation to 170LU(3), and I'll put material before you and some of this would come out in the cross-examination of Mr Anderson that you can actually certify pursuant to the 170LU(3).

PN140

In relation to 170LK we would say that the agreement has not been validly made, that there has been non compliance in the strict sense with 170LK(1) and with 170LK(7) and to the extent that 170LK(1) is relevant, that then takes us back to the provisions of 170LE which will add to what constitutes a double majority.

PN141

THE SENIOR DEPUTY PRESIDENT: LV or LE?

PN142

MR RYAN: LE, yes, capital L, capital E.

PN143

THE SENIOR DEPUTY PRESIDENT: Now, Mr Thompson, you rose. Was there something that you wanted to say?

PN144

MR THOMPSON: I briefly mention to and if we need to come back to, we'll come back to it, only that I think there is some precedents handed up already with the requirements of section 170LK, not necessarily for mandatory and I think that we've seen a raft of Full Bench decisions and some notable ones by - - -

PN145

THE SENIOR DEPUTY PRESIDENT: Sorry, you're - - -

PN146

MR THOMPSON: - - - Deputy President - - -

PN147

THE SENIOR DEPUTY PRESIDENT: You're wanting to argue the substance are you? I thought - - -

PN148

MR THOMPSON: No, no - - -

PN149

THE SENIOR DEPUTY PRESIDENT: - - - it was some procedural matter.

PN150

MR THOMPSON: - - - .....matter whether it's dealt with but there are precedent - there is also a precedent there that would contradict what Mr Ryan has just put regarding the mandatory requirements of LK.

PN151

THE SENIOR DEPUTY PRESIDENT: When you said material that had already been handed up, what were you referring to?

PN152

MR THOMPSON: I handed up a copy of a decision by Commissioner Richards, Melbourne - - -

PN153

THE SENIOR DEPUTY PRESIDENT: Yes, yes, yes.

PN154

MR THOMPSON: Which I think is relative.

PN155

THE SENIOR DEPUTY PRESIDENT: Yes, thank you. Mr Ryan, so having said that, you are wanting to rather than make submissions at this stage, to cross-examine?

PN156

MR RYAN: Yes, certainly it would be proper in my view for all of the evidentiary material to be put before the Commission before submissions are made and part from that evidentiary material from the Association's point of view would be the cross-examination evidence of Mr Anderson.

PN157

THE SENIOR DEPUTY PRESIDENT: Very well. Just remind me,
Mr Anderson, were you a signatory of one of the statutory declarations?

PN158

MR J AUTHURSON: Yes, I was your Honour.

PN159

THE SENIOR DEPUTY PRESIDENT: Yes, thank you.

<JAMES PATRICK ARTHURSON, SWORN [10.46AM]
<CROSS-EXAMINATION BY MR RYAN

PN160

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Arthurson.

PN161

MR RYAN: I keep referring to you as Mr Anderson. I apologise, Mr Arthurson. I will get your name right. Mr Arthurson, did you prepare the statutory declaration which has been filed in this matter?---I did not prepare it, no.

PN162

You have sworn it. On that basis you say that everything in it is true and
correct?---Yes.

PN163

Does that include the attachments as well?---Yes.

PN164

To put this matter into some perspective, can I get you to at least give the Commission a picture of the operations that are going to be covered by this agreement. I note simply from the statutory declaration that there were at least several sites mentioned; how many actual sites are going to be covered by this agreement?---There's 10 sites.

PN165

Where are those sites, please?---The sites are based mainly in Gippsland. There's one that is in Carrum Downs in Melbourne but the rest are in Gippsland.

PN166

Where are they in Gippsland?---Scattered between right down to Bairnsdale and right down to Phillip Island, there's a number of sites between those particular cities.

PN167

So Bairnsdale and Phillip Island, that's two; what are the other sites?---Well, you have Carrum Downs, you have Traralgon, Moe, Morwell, Wurruk, Stratford, Bairnsdale, Grantville, Korumburra and Cowes.

PN168

One was Wurruk, was it?---Yes.

PN169

Not Warwick or Wurruk?---Well, I pronounce it Warwick.

PN170

W-u-r-r-u-k?---Correct.

PN171

Then after that was Stratford and what was after Stratford?---Bairnsdale.

PN172

Yes, and - - - ?---Well, we've got Korumburra, Grantville and Cowes.

**** JAMES PATRICK ARTHURSON XXN MR RYAN

Okay I've got Carrum Downs, Phillip Island, Traralgon, Moe, Morwell, Wurruk, Stratford, Bairnsdale, Korumburra?---Grantville.

PN173

Grantville, and what are the number of employees that would be on each site?
---That can vary. It can vary depending on the size of the site.

PN174

Can you go through how many are employed at Carrum Downs?---I couldn't tell you exactly now is my answer.

PN175

Can you tell me why you couldn't explain to me how many employees you have per site?---That is something that I don't hold in my head and also they may vary depending on whose ..... at particular times, we might have a pool of people
that .....

PN176

In your statutory declaration you identify the total number of employees covered by the agreement as being 79?---Yes.

PN177

If you can't give accurate breakdown of the numbers, can you give a reasonably close approximation of how that 79 is broken up across the 10 sites?---No, I couldn't. That can vary, the 79 can vary, it depends on people coming and going as casuals.

PN178

Then is the 79 necessarily accurate or was that accurate only at the exact point of time you swore your stat dec?---That particular time, yes.

PN179

So the number at the moment could be greater or lesser than 79?---Correct.

PN180

You don't know whether it would be greater or lesser?---At this point I couldn't tell you.

PN181

Is this flexibility in the numbers a constant feature of the operation of your petrol retail sites?---No, our sites are - our staffed reasonably stable but there are times when people come and go but the majority of its fairly stable.

PN182

But the periods when people come and go is not fixed by season or month, or?
---Not necessarily, no.

**** JAMES PATRICK ARTHURSON XXN MR RYAN

Can you say as to whether or not there were 79 employees when you first made the offer to employees in relation to this agreement?---I couldn't be certain about that but there'd be very close to that, yes.

PN183

But it could have changed up or down?---Yes.

PN184

MR THOMPSON: Can you just clarify that for me, please? Before or at the time or after?

PN185

MR RYAN: At the time - you indicated that the figure of 79 was not necessarily the figure at the time you made the offer of the agreement; is that the way you would put it?---What I'm saying is that at the time of the agreement there'd be very close to 79 give or take, but very close to 79.

PN186

Is it very close to 79 at the moment?---Yes, it would be.

PN187

Give or take?---Well, it depends on who's been employed and who's left the company since, there would be turnaround.

PN188

So the 79 was accurate only on the day you swore the statutory declaration?---I believe that's the case.

PN189

But that is your statutory declaration when you - - - ?---That is the case, yes.

PN190

But on other days it could have been more or less than 79?

PN191

MR THOMPSON: I think he's answered your question. Your Honour, I think the question's been answered already numerous times.

PN192

MR RYAN: In question 5.3 or in answer to question 5.3 in your statutory declaration, you identify that you have 33 women employed; do you know where they are employed across your business?---Yes, they'd be across all the sites.

PN193

Do you know how many women would be employed in any particular site or each site?---Not off - no, I wouldn't definitely know that at this point.

PN194

You have identified that you had one person employed from a non-English speaking background; do you know where they were employed?---No, this is one area that I don't get involved inasmuch as I have a personnel person that looks after this area for me so it's one area that I don't get involved in heavily.

**** JAMES PATRICK ARTHURSON XXN MR RYAN

Yes?---In relation to where staff are working.

PN195

You have identified in the statutory declaration that the mix between the 79 employees w as 71 casual and eight part-time. Are you aware as to whether that break-up is still accurate?---No, under the current Vehicle Repair Award we do not have part-timers.

PN196

So at the time you had - at the time of this statutory declaration you had eight part-timers?---That's correct.

PN197

And you don't have eight part-timers now?---That's correct.

PN198

Can I ask what happened to them?---With the change from the State Minimum Sector Award as of 3 January, we moved to the Vehicle Repair - excuse me - Award and under the requirements of 6A our employment - letter of employment, we do not meet those minimum requirements under 6A and as such under 6C, if I'm correct - sorry, 6G, they have to be paid as casual employees.

PN199

So what happened then to these eight part-time employees? Have they had their services terminated?---No, they've now moved to a casual employee.

PN200

That was a change made by you or by the company?---No, that was a requirement under the new Vehicle Repair Industry Award which came into effect at the start of the year.

PN201

You're familiar with the award, are you?---Not all the award, sorry, no. I am certainly aware of that particular section of the award that relates to part-time.

PN202

Yes. If I may, your Honour, hand a copy of the award to the witness. I would like him to take the Commission to the parts he's referring to. Does the Commission have a copy of the award in full?

PN203

THE SENIOR DEPUTY PRESIDENT: Not in full but a fair bit of it. It is a very long award.

PN204

MR RYAN: Yes, I do - - -

PN205

THE SENIOR DEPUTY PRESIDENT: We decided not to consume the paper on the family leave and all the rest of it.

**** JAMES PATRICK ARTHURSON XXN MR RYAN

MR RYAN: If I may suggest, I have downloaded a copy of the award from the wage net site so it's the consolidated award.

PN206

THE SENIOR DEPUTY PRESIDENT: Yes.

PN207

MR RYAN: When you get access to the award off the wage net site it does not come with any page numbers in it so that if you then try to make references you either have to make references very accurately to a very complex numbering system or you get lost.

PN208

THE SENIOR DEPUTY PRESIDENT: Yes, fortunately my version has - which is a printout of the Commission's version has page numbers.

PN209

MR RYAN: They might be then different, the page numbers that Mr Arthurson would have.

PN210

THE SENIOR DEPUTY PRESIDENT: Indeed.

PN211

MR RYAN: I would e happy to hand you up a copy of the award paginated in the format that I have got it, if that would assist?

PN212

THE DEPUTY PRESIDENT: I think I am familiar with the numbering system so far. I should be able to follow you but thank you, that would be helpful anyway.

PN213

MR RYAN: Mr Arthurson, you have just referred to clause 6A; is that six with a small a or six with a capital A and can you - on the copy of the award that I have just given you, can you identify exactly where - ..... test.

PN214

THE SENIOR DEPUTY PRESIDENT: It is 11 o'clock, we appear to be having a test of the alarm system. Carry on, Mr Ryan.

PN215

MR RYAN: I nearly..... suggest - - -

PN216

THE SENIOR DEPUTY PRESIDENT: Yes.

PN217

MR RYAN: Well, in future I will have to buy a siren, I think ..... . Mr Arthurson, if I could take you to page 6 of the document I have shown you. Mr Arthurson?---Yes.

**** JAMES PATRICK ARTHURSON XXN MR RYAN

Page 6 of the document that I have shown you so that we are all off exactly the same document.

PN218

THE SENIOR DEPUTY PRESIDENT: Gentlemen, we do appear to be having an alarm test. I think that announcement means we can carry on, doesn't it?

PN219

MR RYAN: Do you have page 6?---Well, I seem to have page 6 but - - -

PN220

The numbering is in the top right-hand corner of the page. Page 6 has clause 6 on it which is Contract of Employment. That's on your page?---It is, yes.

PN221

You referred to 6(a). The first part of clause 6 is 6(a), is that what you're referring to as being the provision that prevented you from employing part-time employees?---No, it varies to the copy I'm looking at.

PN222

MR THOMPSON: If it might assist the Commission, I think we're dealing with page 13, 6 capital A.

PN223

THE SENIOR DEPUTY PRESIDENT: Sorry, say that again Mr Arthurson
?---Yes, I'm referring to page 13.

PN224

MR RYAN: In relation to page 13 which is clause 6A, titled Regular Part-Time Employees, the first part of that clause has small (a) so it's 6A(a):

PN225

An employer may employ regular part-time employees in any classification in this award.

PN226

So you accept that you can employ regular part-time employees?---Yes.

PN227

Then (b) says, this is small (b):

PN228

A regular part-time employee is an employee who works less than full time hours of 38 per week and...(reads)... the same kind of work.

PN229

Is there any part of paragraph B that you say prevents you employing part-time employees?---Yes, our style of business which is a 24-hour business, we want that flexibility where we do not wish to have employees set to set hours or set rosters, and we need that flexibility as a 24-hour site, for all employees on this basis.

**** JAMES PATRICK ARTHURSON XXN MR RYAN

So which part of paragraph B do you say then prevents you from having flexibility?---B2, the reasonable hours of work.

PN230

Paragraph C of clause 6A says:

PN231

At the time of being employed...(reads)... and the times that are taken for the duration of meal breaks.

PN232

Does that apply to any of your part-time employees?---We don't have any part-time employees currently.

PN233

Would that have applied to any of your part-time employees prior to you converting them to casuals?---No.

PN234

If clause 6A(c) allows variations to days of the week the employee will work, the actual starting and finishing times each day as is provided for in paragraph (iv), why wouldn't, in your view, that ability to have variations in writing allow you the flexibility you want?---Our sites, as I say, we have employees currently, mostly all - we have 80 per cent - we had 80 per cent of our staff under the State Sector - Minimum Sector where we were at casual and there's no way known as a commercial arrangement could we come to an agreement between us all for a portion of our business and be held with all those penalty rates in particular on weekends and so forth. We could not afford to keep our operations running seven days a week with the penalty structures and also under that clause C with all those requirements, it would restrict our operations accordingly; and we would certainly have to look at the operation of the business operating 24 hours and there would be a number of sites where we would have to look at in some instances not operating 24 hours but reducing the hours back and we believe that's unfair to the employees that we do have - yes, we have a good understanding relationship with our employees and to have that restraint put against the company would split the employees down the middle by actually having people paid at different rates and that hasn't happened in the past; we don't want that to happen now.

PN235

THE SENIOR DEPUTY PRESIDENT: Mr Ryan, I am struggling to see what the relevance of this is. Mr Arthurson's answered that they do not have any part-time employees in the business. The employees currently are employed as casuals and therefore opinions on whether he may be able to employ people as part-time or not, I am struggling with.

**** JAMES PATRICK ARTHURSON XXN MR RYAN

MR RYAN: In answer to question 6.1 of the statutory declaration, it asks for you to specify a relevant award and it identifies - do you have your statutory declaration with you?---I do.

PN236

The question says "specify the relevant awards" and then it defines a relevant award is:

PN237

One which regulates the terms of conditions of employment...(reads)... that is the day on which the agreement is certified by the Commission.

PN238

And you have there the Vehicle Industry Repair Services and Retail Award 2002. You swore this statement on 15 December - I think is the - 21 December. At that date, was the Vehicle Industry Repair Services and Retail Award binding on you?
---No.

PN239

Are you a member of the Victorian Automobile Chamber of Commerce?---No.

PN240

You're not?---No.

PN241

Are you a member of the Australian Industry Group?---Please clarify.

PN242

The Australian Industry Group is an organization of employers?---No.

PN243

Are you a member of the Victorian Employers Chamber of Commerce and Industry?---No.

PN244

When you converted your employees from permanent to casual did you do it with their agreement?---No, we're bound by the clauses under the Federal - sorry, under the Industry Repair Award.

PN245

If you didn't do it with their agreement then you did it unilaterally, a decision of the management to simply change people from being permanent to being casual?

PN246

MR THOMPSON: Your Honour, I think he has answered the question firstly.

PN247

THE SENIOR DEPUTY PRESIDENT: Is this an objection?

PN248

MR THOMPSON: Yes, it is.

**** JAMES PATRICK ARTHURSON XXN MR RYAN

THE SENIOR DEPUTY PRESIDENT: Yes.

PN249

MR THOMPSON: Thank you, your Honour. I think he has answered the question by stating that it's not so much a question of whether he converted them as opposed to the circumstances and the introduction of a new award, which - - -

PN250

THE SENIOR DEPUTY PRESIDENT: Well, why don't we let the witness answer for himself.

PN251

MR THOMPSON: Yes, your Honour.

PN252

WITNESS: Sorry, can you repeat it?

PN253

MR RYAN: Was the decision to convert from permanent part-time employment to casual employment a unilateral decision of management?---It was a decision that we had to make because we were bound, as I said, by the requirements of the new award that we were - that was put in place as of January. Because we did not meet the requirements under part-time, all our employees who are part-time under the State Minimum Sector Award are reverted to casual.

PN254

THE SENIOR DEPUTY PRESIDENT: So when you said it applied from January, we are still in January, it's the 27th?---I think it was 3 January when the Federal - the Vehicle Industry Award became the common rule award for our particular industry.

PN255

MR RYAN: Where in clause 6A of the Vehicle Industry Repair Services and Retail Award 2002 is there a requirement on you to have converted your part-time employees to casual employees?---We do not, under our arrangements with our staff, have - in areas where it's got here that we have to have the hours of work each day, which days of the week the employee will work, that has to be in writing to the particular staff and we do not have that in writing and as such, when the - this award became common rule award, we did not meet those minimum requirements so our staff then converted. We had no option but to convert them to casual. I must say that we're not - you know, we weren't - we're probably in a position where we can certainly offer these people AWAs if they wish the other people who were part-time under that State Minimum Sector Award; there is an ability under our certified agreement that we can offer AWAs to a particular staff.

PN256

The Vehicle Industry Repair Services and Retail Award also provides for the payment of annual leave loading on annual leave; are you aware of that?---As what part? Are we talking about - - -

**** JAMES PATRICK ARTHURSON XXN MR RYAN

SA - - - ?---- - - part-timers under the award, or?

PN257

For part-timers and full timers under the award are entitled to be paid annual leave loading when they take periods of annual leave; are you aware of that?---Yes.

PN258

Were you paying annual leave loading to the part-time employees you had up until December?---Yes.

PN259

You were paying annual leave loading?---No, sorry, no annual leave loading. No, sorry.

PN260

Under the agreement you are also no paying annual leave loading?---We would be bound under the - - -

PN261

No, under the agreement, under the proposed agreement you will not be paying annual leave loading either?---Correct.

PN262

Did you create the wage rates in the agreement on the basis of taking into account the award obligation on annual leave loading?---No.

PN263

You didn't. You indicate that your option for dealing with your existing part-time employees was only to convert them to casuals because you were not - or you didn't have them in a situation where you were complying with the provisions of clause 6A. Would another option available to you have been to simply make certain that your part-time employees were employed on conditions that met the requirements of clause 6A?---No, as I say our business could not handle that. Our operation, as I said to you before, in a 24-hour site we'd needed that flexibility of rosters and times so no, we would not in any circumstance.

PN264

Can you point to any provision in clause 6A that prevents 24-hour operation with regular part-time employees?---No.

PN265

Would it be truer to say that it's a cost issue rather than compliance with any particular provisions of the award, it's the costs of complying with the award that would worry you?

PN266

MR THOMPSON: Objection, your Honour.

PN267

THE SENIOR DEPUTY PRESIDENT: Why?

**** JAMES PATRICK ARTHURSON XXN MR RYAN

MR THOMPSON: Why for the objection?

PN268

THE SENIOR DEPUTY PRESIDENT: Yes.

PN269

MR THOMPSON: It seems to me like a leading question.

PN270

THE SENIOR DEPUTY PRESIDENT: Well, it's cross-examination.

PN271

MR THOMPSON: Yes, sir.

PN272

WITNESS: It's both, it's one where we looked at the requirements of the regular part-timer under the award and we do not meet those requirement sand we do not wish to and certainly as a commercial reality, it certainly is that we cannot, as a service station operator, be bound by what would be the requirements to pay employees under the part-time arrangements.

PN273

THE SENIOR DEPUTY PRESIDENT: By the way, can I just clarify, Mr Thompson, you did not choose to ask any questions of Mr Arthurson first when he came into the box and noting that he is your witness, obviously you have the opportunity - - -

PN274

MR THOMPSON: To re-examine?

PN275

THE SENIOR DEPUTY PRESIDENT: Yes.

PN276

MR THOMPSON: Yes, thank you.

PN277

MR RYAN: I am presuming, though, that re-examination can only be in relation to matters that arise out of the cross-examination?

PN278

THE SENIOR DEPUTY PRESIDENT: I am presuming that too.

PN279

MR RYAN: Yes.

PN280

THE SENIOR DEPUTY PRESIDENT: I think we probably should make it explicit what we have all presumed as implicit, namely that Mr Arthurson's evidence-in-chief is already in his statutory declaration.

PN281

MR RYAN: Yes.

**** JAMES PATRICK ARTHURSON XXN MR RYAN

THE SENIOR DEPUTY PRESIDENT: Let me know if that implicit assumption is not correct, but I think we proceeded on the basis that we had Mr Arthurson's statutory declaration as his evidence-in-chief and for that reason Mr Thompson, you did not take the opportunity to lead any additional evidence and we have gone straight into cross-examination. So hence my answer to your objection that we are - - -

PN282

MR THOMPSON: Yes ..... - - -

PN283

THE SENIOR DEPUTY PRESIDENT: - - - at cross-examination. Yes, thank you.

PN284

MR RYAN: Does the employment then of casuals instead of the part-timers provide you with cheaper employment costs?---We'd actually take into account - the rate that we actually will be hopefully paying the casuals takes into account the hourly rate, the actual annual leave, sick leave, all those provisions are in the particular hourly rate we believe is quite fair.

PN285

No, I didn't ask you whether it was fair?---We believe it's fair.

PN286

No, I didn't ask you whether it was fair. I asked you whether it was cheaper than employing part-timers, I said cheaper labour costs by the casuals?---If we were bound and paid under the regular - sorry, the part-timers, if we were bound by the agreement there would certainly be penalties that we - the company could not sustain so we would certainly - we wouldn't be prepared, as I say, to have part-timers under the arrangements that were there with the Vehicle Repair Award.

PN287

So when you say you can't sustain them, then it is - I am not trying to put words in your mouth but I keep asking the question is it cheaper for you in terms of your labour costs to employ casuals than it is to employ part-timers?---If I understand the question, no, I don't believe so, no.

PN288

So it's cost neutral as to whether you employ a casual or a part-timer?---It depends on the hours worked by the - under the award certainly there would be penalties, as I say, with permanent part-time which would certainly be horrendous for any business so I would think there would be a penalty, as I say, with the regular part-time employees.

**** JAMES PATRICK ARTHURSON XXN MR RYAN

In preparing this agreement did you do a comparison between the actual cost that would be imposed on your business if the award applied to you and whether or not you employed casuals or part-timers under the award; did you do any analysis like that?---No.

PN289

So you have no idea then as to whether or not it's cheaper or dearer to employ a casual or a part-timer under the award?---Certainly if you look at the award, there would - as I say, as of penalty arrangements those part-timer[sic] that would certainly be detrimental to the business.

PN290

But is it detrimental because it's more expensive?---Certainly.

PN291

It is? Was that a yes?---Well, there certainly would - if you look at the overtime requirements for us to pay, there would certainly be a penalty against that.

PN292

So if there's a penalty against the company for employing part-timers then is it cheaper to employ casuals?---Well, yes, it would be.

PN293

What is the basis for the authority you have to change your existing part-time employees to casual employees without their agreement?---As I've stated previously, we're bound by the Vehicle Industry Repair Award.

PN294

But you can't point to any provision in that award that requires you to convert existing part-timers to casuals?---We don't meet the requirements under the part-time employees under 6A.

PN295

But it is open to you to meet those requirements isn't it?---Yes.

PN296

MR RYAN: Taken to meet those requirements, then the award itself can't give you the authority to convert existing part-timers to casuals, so what is the authority you say you have to convert existing part-timers to casual employment without their consent?---Because we don't meet the minimum requirements as part-time employees moving from the State minimum sector to the ..... award.

PN297

And that's the only authority to rely upon?---Certainly. That's what we've based our decision on because we'd be in breach of the award if we did not abide by the award and the award required us to convert part-timers to casual based on the provisions of the award.

**** JAMES PATRICK ARTHURSON XXN MR RYAN

We've already got - I think you answered it clearly that the award doesn't require you to do that. You are able to convert your part-time employees' contracts, not their contracts, their working arrangements to fit within the requirements of the award. You've already said yes to that as a question. So what authority - I don't know whether the Deputy President may be familiar with East Gippsland and the whole area from Carrum Downs through to Berwick.

PN298

THE SENIOR DEPUTY PRESIDENT: Reasonably.

PN299

MR RYAN: To assist, and maybe to assist my own understanding where ever these places are, I'd like to show to the witness a photocopy out of the Melways, it's a map of eastern Victoria, and mark this as an exhibit if I may, your Honour.

EXHIBIT #I1 - PHOTOCOPY OF MELWAYS ROAD MAP

PN300

MR RYAN: Now, Mr Arthurson, I must admit I found some difficulty trying to locate different of your operations by just reading the statutory declaration and the attachments to it, and on that basis you might be able to help me. On the exhibit I1, we've got grid lines on them but they're certainly no lettered or numbered, but the second grid line in from the left hand side of the page, no, third grid line in from the left hand side of the page, and fourth grid line up from the bottom, is pretty close to Cowes. Can you see that?---Yes.

PN301

Now, Cowes is, I understand, where your petrol station on Philip Island's located. Is that right?---That's correct.

PN302

Now, virtually directly to the right of that on the Bass Highway is Grantville. Is that where your other service station is located?---Yes.

PN303

And then further to the right of that, going across what is the large black line going down the page, just past that is Korumburra on the Gippsland Highway or is it the South Gippsland Highway - on the South Gippsland Highway. Is that right?---Yes.

PN304

Traralgon is on the main Princes Highway so it's - and Moe, Moe's virtually in the centre of this map, is that right, on the main Princes Highway?---That's correct.

PN305

And to the right of Moe is Traralgon?---Yes.

**** JAMES PATRICK ARTHURSON XXN MR RYAN

And Morwell is in between Moe and Traralgon?---Yes.

PN306

Okay. Where's Warwick?---It's just prior to Sale.

PN307

Just prior to Sale. And is that on the highway itself?---Yes.

PN308

Okay. And Bairnsdale is to the extreme right edge of the map on the Princes Highway?---Yes.

PN309

And Stratford, is that directly north of Sale on the Princes Highway?---Yes.

PN310

A sort of a crooked L shaped operation. And Carrum Downs doesn't show up on this map, but approximately where on the Bay area of Melbourne is Carrum Downs?---Coming down towards Frankston from Dandenong.

PN311

There is a road marked on the map from Dandenong down to Frankston. Is it on that road, or close to it?---It's on the Frankston-Dandenong Road.

PN312

Yes. Is it closer to Frankston then it is to Dandenong?---Yes.

PN313

So somewhere in that lower portion of that main road towards Dandenong - towards Frankston, is where Carrum Downs is?---Correct.

PN314

Okay. Now that's a reasonably good geographical spread for a group of petrol retail outlets. You identify in the statutory declaration at paragraph - or question 5.8, you specify the steps taken by the employer before an agreement was made to explain the terms of the agreement to employees subject to it. You answered that:

PN315

The content and nature of the agreement was made to employees by an employee representative through a series of meetings conducted at various locations in the Gippsland region. Employees were informed of meeting dates and locations and then staff information meeting dates.

PN316

And you've got Seaford. Given that Seaford is not the location of the service station, what was at Seaford?---That's our admin office.

PN317

And how far away from Carrum Downs to Seaford is that?---In relation to time it's about 5 minutes.

**** JAMES PATRICK ARTHURSON XXN MR RYAN

And on this map in relation to geographic location, would it be reasonably due west of Carrum Downs on the coastal road?---Yes, on the Nepean Highway.

PN318

Okay, so that's at Seaford. You also say you had a meeting at Stratford which is the location on the Princes Highway to the east of Sale, and you also had one at Traralgon, and one at Grantville?---Yes.

PN319

Now, that would account for four of your service stations that you conduct, what happened to all of the other service stations and employees of those areas?---The sites in particular at Carrum Downs were invited to Seaford. Bairnsdale and Warwick joined at Stratford. Moe, Morwell and Traralgon staff met at Traralgon. Grantville, Korumburra and Cowes went to Grantville.

PN320

THE SENIOR DEPUTY PRESIDENT: By the way, I presume looking at the dates that are given there at 5.8, for the last one at 5pm, 6 November 2004 at Grantville, was it November?

PN321

MR THOMPSON: I think it was December actually.

PN322

THE WITNESS: No, that's correct, it was November.

PN323

THE SENIOR DEPUTY PRESIDENT: Okay. Thank you.

PN324

MR RYAN: So, if we just take the one at Stratford, 5 pm on 29 November 2004 at Stratford. Now you just said then that staff from Bairnsdale and Warwick were invited to the meeting at Stratford?---Yes.

PN325

Were they paid to attend the meeting?---No.

PN326

Were they given any travel assistance in terms of monetary assistance to cover their costs to attend the meeting?---No.

PN327

Did you close down the site at Bairnsdale, Sale and Stratford while you conducted the meeting?---No.

PN328

The meeting at Traralgon you had people attend from Moe and Morwell. Were they given either paid time, payment for hours attending the meeting or payment of travel allowance to attend the meeting?---No.

**** JAMES PATRICK ARTHURSON XXN MR RYAN

The meeting at Grantville where you invited those from Korumburra and Cowes, were the employees at Korumburra and Cowes either given paid time to attend the meeting or paid any travel allowance to attend the meeting?---No.

PN329

And were any or all of the sites closed whilst the meetings were- - - ?---Those sites were closed. If I may make a comment, staff who could not make the - who may have worked upon that particular time, they had the opportunity - were given the opportunity to ring me and I would meet independently with them and discuss any concerns that they may have in relation to the certified agreement and, in some cases, that did happen.

PN330

Who was the employer representative who conducted the meetings?---That was me.

PN331

And what information - were there any handouts or any presentations - formal presentations, overheads, PowerPoint presentations like that given at these meetings?---No. There was a certified agreement available for all staff to take a copy and we then proceeded to go through each of the items in the CA agreement and all staff were encouraged to ask questions at any particular time.

PN332

You said that a copy of an agreement was provided for employees to take a copy. Were they given their own personal copy or was there an agreement that they could copy?---There was one left at the site on display after the letter of intent was mailed out to the staff, and the staff that attended the meetings, they could take a copy from there if they wished. It was available for all to see.

PN333

Was there a copy of the award available for staff?---No. But the staff were advised that if they wished to review the award they could make their own arrangements to get a copy.

PN334

They could make their own arrangements to get a copy?---Correct. Unfortunately, due to the size of the agreement, I don't think we would have had enough paper to copy it for all staff.

PN335

THE SENIOR DEPUTY PRESIDENT: I think you mean the award don't you?

PN336

THE WITNESS: I'm sorry?

PN337

THE SENIOR DEPUTY PRESIDENT: He said the agreement.

**** JAMES PATRICK ARTHURSON XXN MR RYAN

THE WITNESS: I'm sorry, the award.

PN338

THE SENIOR DEPUTY PRESIDENT: Yes.

PN339

THE WITNESS: Sorry, your Honour.

PN340

MR RYAN: So apart from the verbal presentation you gave, there was nothing that they could take away - the employees could take away from that meeting to further consider other than asking for a copy of the agreement itself?---They would take the agreement away and they could - they may have had answers written down from questions they may have asked, and that would give them the time to go away and review and also make their own mind up.

PN341

Now the issues that we've discussed earlier in your cross-examination about the relationship between casual employees and part-time employees under the agreement as against under the award, was that explained to them in the same terms that you've answered questions today?---It was.

PN342

Did you explain at those meetings commencing on 6 November up to 27 November that employees would - part-time employees at that point in time would be converted to casual employees in January?---I said with the introduction of the vehicle award we would be obligated under that award as we did not meet the minimum requirements of part-time they would convert to casual. I did state we had no option because we were not going to meet the minimum requirements of the part-time under the award because of the restrictions it would place against our business.

PN343

And you have an agreement which is based upon the concept of permanent employment. Is that correct? Your agreement is based upon the concept of permanent employment?---Yes.

PN344

And you explained that to the employees?--- .....

PN345

I notice from the attachments of the statutory declaration that it appears the voting process was conducted in the same manner as the explanatory meetings and that is actual ballots were held at Stratford, Traralgon, Grantville and Seaford?---Yes.

PN346

On the days the ballots were conducted were employees from the other sites paid to attend the voting site or paid travel allowance to attend the voting site?---No.

**** JAMES PATRICK ARTHURSON XXN MR RYAN

Did you keep any records yourself of the meetings to conducted to explain the terms of the agreement?---I'm sorry I don't understand the question.

PN347

Did you keep diary notes or records of anything that happened at the meetings, questions that might have been asked, who was there?---What was kept was that we actually - we answered questions or I answered questions at the time. I did not make a diary note of the questions that were asked at that particular time.

PN348

How many people attended the Stratford meeting?---If I can recall, nine.

PN349

And how many attended the Traralgon meeting?---If I can recall, this may not be completely accurate, but they'd be around nine to ten.

PN350

And how many attended the Grantville meeting?---From five to six, if I can recall.

PN351

And Seaford?---No one attended.

PN352

Did you hold a meeting at Seaford?---Yes.

PN353

THE SENIOR DEPUTY PRESIDENT: Sorry, the answer was no one attended.

PN354

THE WITNESS: Correct.

PN355

MR RYAN: Attached to the statutory declaration is attachment 1 which is the initial notice that you sent out to your employees. Is that what it's for?---The letter of intent?

PN356

Yes?---Yes.

PN357

At the very bottom of the first page of attachment 1 asks the question:

PN358

Whose employment will be subject to the agreement.

PN359

And the answer is:

PN360

All existing and future employees other than full-time employees.

PN361

The part-time employees you had at the time, it was the intention to have them covered by the agreement?---Yes.

**** JAMES PATRICK ARTHURSON XXN MR RYAN

And the casual employees would also be covered by the agreement?---Yes.

PN362

Now there is attachment 2 to your statutory declaration which has a set of comparison charts. Was that document distributed at all to any employees?
---Sorry, I haven't got that particular document with me.

PN363

It's entitled:

PN364

Endeavour Petroleum trading as BP, Respondent to Vehicle Industry Award, Classification Driveway Attendants, CO Level 1

PN365

?---No. It was not given.

PN366

It was not given to employees?---No.

PN367

Attachment 3 to your statutory declaration is called:

PN368

Award/CA clause by clause comparison table

PN369

Was that given to your employees?---No.

PN370

Were attachments 2 and 3 only prepared for the purposes of the Commission hearing?---Yes.

PN371

At attachment 4, we have four pages called:

PN372

Statements by employee returning officer

PN373

And it indicates information generally about the attendants voting. Is that correct?---Yes.

PN374

The employee returning officer. What is an employee returning officer? Is it a classification within the company? A particular designation within the management grouping? What is an employee returning officer?---An employee returning officer is an employee that's been nominated to represent the staff.

PN375

So who nominated Jamie Hughes, who was the employee returning officer at Grantville?---It wasn't done by all staff because of the distances and so forth and it was done in relationship with the people at Grantville.

**** JAMES PATRICK ARTHURSON XXN MR RYAN

Each of the statements by the employee returning officer, with the exception of the first one, appear to be in reasonably similar form, so the first one seems to be somewhat different. Who prepared that statement, signed by Jamie Hughes?---I did that statement.

PN376

You prepared the statement?---Yes, but she had the option of changing it if need be if anything altered from that particular day.

PN377

Were you in attendance at the time the ballot was taken?---Yes I was.

PN378

The statements, which also form part of attachment 4, by Peter Thornhill, Jamie Kendall - actually, now, this might be confusing. Can you explain why there's two statements from Jamie Hughes?---Yes, she was at the ballot, she was the secret ballot, she was the person who conducted the secret ballot on that particular meeting and she also was the one that actually did the total up of all the ballots so she was involved in two meetings.

PN379

The first page of attachment 4, the statement by Jamie Hughes on 15 December 2004 at Grantville, was the counting of the votes undertaken at Grantville?---It was.

PN380

And that's - they're the postal votes or the ..... votes?---It was both postal and also the secret ballot.

PN381

So the declaration date of the 15th relates to the total ballot?---Correct.

PN382

The second declaration by Jamie Hughes dated 10 December also says it took place at Grantville?---Correct. That was when the secret ballot was conducted for those particular sites.

PN383

So that was the attendance ballot?---Correct.

PN384

And would that be the same also for Jamie Kendall and Peter Thornhill? ..... They relate only to the attendance ballots conducted at those two sites?---Correct.

PN385

Did you attend the attendance ballots on 10 December at Grantville, Traralgon?
---I attended all meetings.

PN386

So you were at the 10 December ballot, attendance ballot, at Grantville?
---Correct.

**** JAMES PATRICK ARTHURSON XXN MR RYAN

You were at the 10 December attendance ballot at Traralgon?---Correct.

PN387

And you were at the 13 December attendance ballot at Stratford?---Yes.

PN388

Did you take any part in the ballot?---No the ballot was done by the employees and was conducted by the person who was nominated.

PN389

Then what was the point of you being there?---I was the one that was - I took all the ballot papers back in the ballot box. The way it operated, people did their own secret ballot. The secret ballot was given to the nominated employee. The nominated employee placed that in an envelope. The envelope was sealed and he signed by back across the seal and that was placed in the ballot box.

PN390

And that was the - were you observing the process of the actual ballot?---I was in the background.

PN391

Were you observing the process of the actual ballot?---I could see what was happening, yes.

PN392

With the counting of the vote on 15 December at Grantville, this is the counting of all votes?---Yes.

PN393

Were you participating in the process of the counting of the votes?---No. I was a bystander.

PN394

You were observing the process?---Yes. The count was done by the returning officer and the witness was in there as well so they were responsible for opening all the envelopes and also all the postal votes.

PN395

And each of the envelopes had the signature of the voter on the back?---That's correct. No all the voters, no, I'm sorry. It was only the person nominated to actually control the secret ballot.

PN396

In the case then of the attendance voting at Traralgon, the only signature on the back of the envelope was whose?---The person nominated to actually control the secret ballot. I'm not quite sure.

PN397

The employee returning officer for that type?---On that particular day, yes.

**** JAMES PATRICK ARTHURSON XXN MR RYAN

Apart from clause 6A of the award which you initially referred to, and we've had some discussion over it, are you familiar with upper parts of the legal industry repair services and retail award as they would relate to petrol retail operations?
---I've read parts of the award, but its quite horrendous trying to get through it all, so there are parts of it I have read, not all of it.

PN398

Are you aware of the laboured rates for part-time and full-time employees on weekends and public holidays?---Yes.

PN399

Do you know clause they're to be found in?---I couldn't say I can.

PN400

In the material you say was prepared solely for the purposes of the Commission, one of those documents is the award CO clause by clause comparison. Do you have that with you?---No.

PN401

Did you have these documents with you when you swore your statutory declaration?---If I can recall, yes.

PN402

But you don't have them with you at the moment? Do you have them in the court room with you?---I don't.

PN403

In the document which is attachment 3 to your statutory declaration, in relation to clause 16 of the agreement, which is weekends and holidays, there are three dot points. The first dot point:

PN404

In any 52 week period no employee required to work on a reducing balance more ...(reads)... at 6 hours each, 156 ordinary hours on weekends, average 26 weekend days at 6 hours each.

PN405

And the second dot point:

PN406

No employee under 18 can be required to work between 9.00 pm and 6.30 am.

PN407

And third dot point:

PN408

No employee under 18 can be left working on their own between 7.00 pm and 6.30 am.

**** JAMES PATRICK ARTHURSON XXN MR RYAN
PN409

The corresponding provision in relation to the award has clause 6F(4)(i) and (iii) and the words, ..... amount weekend and public holiday penalties payable for each classification listed in a typical wage tables in this clause and determined by age of employee. There's no mention in the award - in the description of the award about employees under 18 being required to work between 9.00 pm and 6.30 am and employees under the age of 18 being left working on their own between 7.00 pm and 6.30 am. Are you aware as to whether or not there are any provisions in the award that deal with those two issues which you do have in your agreement?
---Me, no.

PN410

Sorry?---No.

PN411

So on that - if you're not aware of any provisions in the award that might deal with this, what's the rationale for putting those two provisions in the agreement?
---Sorry, I need my - I just need those clauses down if someone could provide me with a copy. Sorry, what was the clause again, please.

PN412

Clause 16, and this is in attachment 3. You clearly highlighted them for some reason. I'm just trying to understand first of all, what's the rationale for putting those clauses into an agreement?---My - the rationale there would be, and I would certainly believe that weekend and holidays would certainly appear within the agreement and, sorry, within the award, and I would believe that would be based upon the award.

PN413

The second and third dot point in clause 16:

PN414

No employee under 18 can be required to work between 9.00 pm and 6.30 am and no employee under 18 can be left working on their own between 7.00 pm and 6.30 am.

PN415

?---Well, yes indeed, that's one thing for HS&E requirement for the - - -

**** JAMES PATRICK ARTHURSON XXN MR RYAN

Sorry for a?---For health and safety, that's one thing that we don't allow console operators to be under the age of 18 and it's one thing that we don't wish to have because of the HS&E, sorry, the health and safety requirements, and we see it as a bit of a - particularly dangerous in relation to a 24 hour site where there's night shifts and there's always that danger that anyone under the age 18 put in that position could not cope.

PN416

And is that the reason why you put it in the agreement?---Yes it is

PN417

Clause 16 in the agreement and in your summary document which was attachment 3 to your statutory declaration, provides a person - at clause 16.2


No employer will be required by the employer to work more than 30 hours on public holidays in any 52 week period.

PN418

At clause 16.3:

PN419

No employee will be required by the employer to work in excess of 156 hours on weekends in any 52 week period.

PN420

In your description of clause 16 in attachment 3, you say:

PN421

In any 52 week period no employee is required to work (on a reducing balance) more than 30 ordinary hours on public holidays, average five public holidays at six hours each and 156 ordinary hours on weekends, average 26 weekend days at six hours each.

PN422

There is a very big difference between the wording of attachment 3 and the wording of the agreement. Can you explain first of all, what do you mean by on a reducing balance in your description in attachment 3?---Well, I can only state what that clause says, and that is where we will not be asking people or our employees to work more than those particular hours, 30 ordinary hours on a public holidays in that 52, and 156 hours on a weekend, and if we did we would be bound of course by the overtime provisions. As we say there, no employee will be required to work more than those hours.

PN423

So for the purposes of understanding attachment 3, the words in brackets in your description of clause 16, should we ignore them?---I think it is explained, as you can see, within that clause.

**** JAMES PATRICK ARTHURSON XXN MR RYAN

But in the clause of the agreement or in the clause of attachment 3?---No. Which is being there at attachment 3.

PN424

Okay. So the only time that work will be performed on public holidays is in six hour shifts?---Or otherwise agreed with the staff, and different hours.

PN425

Okay. So it can be less than or more than six hours?---It could be, yes.

PN426

And in relation to weekend work is the only way, weekend work will be on six hour shifts?---Not necessarily. It depends on, as I say, the agreement with the staff.

PN427

Okay. So workers could work - - - ?---Shift requirements on that particular time. It depends on the site itself and what are the requirements of the site.

PN428

So that the words in brackets in your attachment 3 are not how the agreement will actually look?---Yes, it will. But as I am saying, we would be in a position where we could offer further hours if required, depending on the needs of the particular site.

PN429

Clause 16 of the agreement itself does not place a limit on five public holidays. Is it possible for employees to work more than five public holidays?---It most certainly is.

PN430

Clause 16.3 of the agreement places no limit on the number of weekend days that can be worked. Is it possible for more than 26 weekend days to be worked?---It is possible.

PN431

Now, clause 16.2 says:

PN432

No employee will be required by the employer to work more than 30 hours on public holidays in any 52 week period.

PN433

And clause 16.3 says:

PN434

No employee will be required by an employer to work in excess of 156 hours on weekends in any 52 week period.

PN435

It doesn't say that you can't ask employees to work more, and it says you can't require them. It doesn't say that an employee is prohibited from working more than 30 hours on public holidays or 156 hours on weekends, does it?---No.

**** JAMES PATRICK ARTHURSON XXN MR RYAN

Attachment 2 to the statutory declaration was a set of wage comparisons. Are you familiar with that?---Yes.

PN436

They were wage comparisons for wages across the three classifications of the agreement at different age points?---I took advice on that particular document, so I would request that any particular questions might be directed to my - - -

PN437

No. You can answer the questions. If you don't know the answer to a particular question simply tell his Honour. Answer them to the best of your ability. Attachment 2, the first set of wage rate comparisons are for the CO level 1, and it identifies that the equivalent classification in the award is driveway attendant. Do you have any employees who are employed as driveway attendants?---No. They are all classified - we have console operators.

PN438

The second set of wage comparisons is for a CO level 2, and it identifies that the award classification is roadhouse attendant, preparation of takeaway food. Do you have any persons who would fit that award description?---No.

PN439

And then level 3 is, CO level 3, the award classification is console operator. And you have your employees in that classification?---Yes, we do.

PN440

Are all of your employees console operators?---Yes.

PN441

Will there be any occasion then where any person will be employed as either a CO level 1 or a CO level 2 under your agreement?---No.

PN442

Why would you put classifications in an agreement if you don't have any employees that work?---That is what appears under the particular vehicle industry award, that I can recall.

PN443

The Vehicle Industry Award also has a roadhouse attendant whose primary occupation is not to cook takeaway food. You haven't mentioned that one?
---Correct.

PN444

The Vehicle Industry Award has mechanic, trades mechanic classification. Are they incorporated into your agreement?---No.

PN445

So if there are other classifications in the award, apart from driveway attendant, roadhouse attendant engaged primarily to cook take away food and console operator, why aren't those other classifications also reflected in the agreement?
---They have no relevance.

**** JAMES PATRICK ARTHURSON XXN MR RYAN

Does the classification of CA level one driveway attendant or CA level two roadhouse attendant engaged primarily to cook take away food have any relevance to your operations?---Not at this stage, no.

PN446

Does it mean that - you said not at this stage, do you intend to employ persons under those classifications?---Depends on what we may do with a number of the sites. We may end up making those into roadhouses. It just depends on the future direction of the company. So you never can tell.

PN447

If you never can tell, and you turn it into a roadhouse, what is a roadhouse, if it is different from a petrol retail site, what is a roadhouse?---A roadhouse to us is where we don't currently cook food or prepare food in that particular classification as roadhouse. We see roadhouse as a stop off where people may dine, where food is prepared, and that is what we classify as a roadhouse.

PN448

Having done a fair bit of driving myself I certainly use roadhouses along the Hume Highway. Are you familiar with roadhouses apart from in the area of Gippsland?---Certainly not.

PN449

So a traditional roadhouse normally has a kitchen area, a food service area and a number of tables and chairs, often with a larger parking area for people to park their cars so that they can actually come in and buy whatever is on offer. Is that sort of a fair description of a roadhouse?---Yes.

PN450

One of the features of roadhouses, certainly for long driving, is customers who will come in and sit down and have a meal. Is that how you understand roadhouses to operate?---I think it depends on the roadhouse operator.

PN451

In what sense?---It depends on how he classifies - whoever runs a particular site like that, it depends on how he classifies it himself. Whether he classifies it as a roadhouse, I suppose. But the way I see the roadhouse is the way I have actually answered the question .....

PN452

But if you go into roadhouses, so that you need a roadhouse attendant is it possible that you would have table and chairs and sit down facilities?---If you go to current roadhouses, yes they would - there is a chance they would.

PN453

Are you aware that the award has very clear distinctions between classes of roadhouse attendant employees?---I am not fully aware of them. I know the clauses are in there but I am not fully au fait with them.

**** JAMES PATRICK ARTHURSON XXN MR RYAN

Have you read that part of the award that deals with the difference between a roadhouse attendant cooking takeaway food and a roadhouse attendant cooking other than takeaway food?---No I haven't.

PN454

You have in your agreement a clause 7 which relates to probation and termination. In attachment 3 to your statutory declaration you say in relation to probation and termination:

PN455

Probation. Initially employed on three months probation. At least one day's notice of termination by the party during this period and termination in cases of refusal of duty, neglect of duty or misconduct. Notice of provisions as per table in clause 7.2 adopted from section 170CM Workplace Relations Act.

PN456

And an unfair dismissal you say:

PN457

Remedies as per Workplace Relations Act.

PN458

Clause 7 of the agreement says:

PN459

Employees will initially be employed in three months probation. Where necessary the probation period for permanent employees may be extended by a reasonable period. Such extension period not to exceed three months by written agreement between the employer and employee.

PN460

You effectively then, under the agreement, have six months probation don't you?
---We have a three months probation period. Depending on the performance of a particular employee that period can be extended to give that period an extended period of time to lift their performance so that we can then evaluate whether that employee was a valued employee, and would be taken on board.

PN461

Who would assess performance?---The site supervisor in conjunction with myself.

PN462

So if you come to the view that performance is not - I should say what would you - have would you describe the level of performance that would warrant an extension of the probation period?---What was said in the particular clause, and also a staff member that doesn't perform the duties as required as a console operator we would review his performance under the job description. If he wasn't performing the job description we would certainly look at his performance.

PN463

MR THOMPSON: Objection, your Honour. I am just seeking to make sure - - -

**** JAMES PATRICK ARTHURSON XXN MR RYAN

THE SENIOR DEPUTY PRESIDENT: What are you objecting to? That question has just been answered.

PN464

MR THOMPSON: Only that the question is not on point of the statutory declaration. We are talking off the statutory declaration, which is under cross-examination, into areas that haven't been canvassed by that statutory declaration and which may well be dealt with by submission by the union, rather than bringing into question new areas.

PN465

THE SENIOR DEPUTY PRESIDENT: It is a question in relation to the content of the agreement, in relation to which I have to make a decision about the no disadvantage test. Why would a question not be relevant there?

PN466

MR THOMPSON: Only that where the statutory declaration provides submissions regarding the no disadvantage test, such as the comparisons table and the tabulations, they are directly relevant to this deponent. More general submissions by the union would be made directly than via the deponent who hasn't made particular comments about those issues.

PN467

THE SENIOR DEPUTY PRESIDENT: He has given evidence in the statutory declaration about where there are - about matters relevant to the no disadvantage test. I am not sure I see that you have got a valid objection there Mr Thompson.

PN468

MR THOMPSON: Very well, your Honour.

PN469

THE SENIOR DEPUTY PRESIDENT: While you are on your feet, one thing has been troubling me Mr Ryan. I am not sure how much longer you are intending to go here but we had other - having no idea what the matters you wish to raise were, and therefore working blind, when this was listed I also listed two other matters involving all of us again, at 11 o'clock. I am just concerned, there isn't anyone waiting outside in relation to those matters are there?

PN470

MR RYAN: No, your Honour.

PN471

THE SENIOR DEPUTY PRESIDENT: I was concerned, as a matter of courtesy, if we have got people waiting that we should deal with that. But I have proceeded on the basis that since we were all going to be together at 11 o'clock on those matters that we would press on.

PN472

MR RYAN: Yes. Which does bring me to a question. I am not certain what the timetable is for the rest of the day, whether you have got other matters scheduled before lunch or after lunch?

**** JAMES PATRICK ARTHURSON XXN MR RYAN

THE SENIOR DEPUTY PRESIDENT: Let me turn the question on you. How much longer are you anticipating being, Mr Ryan?

PN473

MR RYAN: I think on cross-examination about three quarters of an hour. And then I expect that there would be some re-examination by Mr Thompson.

PN474

MR THOMPSON: Not the same length as Mr Ryan.

PN475

THE SENIOR DEPUTY PRESIDENT: Thank you. We commenced at 10 o'clock. Does anyone need to take a break? My normal practice is to sit through until about 12.45 and then to break. Does anyone need to break earlier than that? Otherwise that is the sort of timetable I am working to. Okay, carry on.

PN476

MR RYAN: The agreement, when it talks about probation, gives no indication of any of the factors that would warrant an extension of probation. Is that correct?
---That's correct.

PN477

Or am I missing something?---No, that's correct.

PN478

Then isn't it true to say that the determination of this whole issue of probation is solely and only in the hands of yourself and site supervisor?---And in conjunction with the employee.

PN479

The employee's role that you said, in conjunction with the employee, the employee's role I take it, is only whether or not the employee agrees to an extension of the probationary period, or the employee does not agree to an extension of the probationary period, in which case you would terminate employment?---I think in the cold hard time of day is that most of the employees who get to the three months and who haven't been performing under the job description do understand that their employment is in danger of being terminated, I think, because of the method that we have, that we have discussions with employees right through that period. I think everyone is understanding of where the employee actually stands.

PN480

But there is nothing in this document which sets out prior to employment what factors would be taken into account by you or the site supervisor in assessing the probationary period of employment?---That probationary period of employment is a standard clause that is employed at a number of .....

**** JAMES PATRICK ARTHURSON XXN MR RYAN

Is it a standard clause in the award?---No. I haven't - I don't know.

PN481

In attachment 3 to your statutory declaration you say:

PN482

No probation period for casuals.

PN483

Do you know if there is a probation period for part time or full time employees under the award?---I can't answer that.

PN484

Clause 7 is very strong in its opening words:

PN485

Employees will initially be employed on three months probation.

PN486

Is that to be read that every employee will be employed on probation?---Every new employee will be employed on probation, yes.

PN487

Every new employee will have three months probation?---Correct.

PN488

If they don't satisfy you at the end of that three months, then as an alternative to termination you can extend their probation by another three months?---Only if there is reason to do so.

PN489

But that is if there is a reason in your mind to do so?---And in conjunction with the employee and the site supervisor we would have discussions right through that period so that every employee would understand that position.

PN490

You have also previously, I indicated, that the only employees you have got are console operators level three?---I have got site supervisors as well as console operators.

PN491

Are site supervisors to be covered by this agreement?---No.

PN492

So the only employees covered by this agreement that you have are console operators?---And casual staff.

PN493

But they are console operators? That is the classification of work that they are performing?---Yes.

PN494

What rate of pay will be paid to a probationary console operator?---No different to the normal standard casual rate.

**** JAMES PATRICK ARTHURSON XXN MR RYAN

If we go to the next clause in the agreement, the classification clause, you identify in attachment 3 the three levels. Level three, level two and level one and you say:

PN495

Classifications as assessed by the employer.

PN496

And that is the language that is used in the opening words of clause 8.1:

PN497

Each employee is classified as assessed by the employer as follows.

PN498

What is the assessment process that will apply under the agreement?---I am sorry, I haven't got the agreement with me, that I need a copy.

PN499

But even looking at clause 8 in your attachment 3, you say:

PN500

As assessed by the employer.

PN501

THE WITNESS: Yes, based upon their type of work that is the assessment of the employer.

PN502

MR RYAN: Looking at the ..... of attachment 3 in clause 8 of the agreement. Level three:

PN503

Employees responsible for the quality of their own work having basic customer skills, product and service knowledge. Typical role, console operator.

PN504

You use the words:

PN505

typical role

PN506

Are there typical roles that could also fit as level three?---No, that is a console operator.

PN507

So when you use the words typical role do you mean ..... role?---That is level three as a console operator, yes.

PN508

Now a person will be classified as a console operator if they are assessed by you to be responsible for the quality of their own work, having basic customer skills, product and service knowledge?---Then they will be employed as console operators.

**** JAMES PATRICK ARTHURSON XXN MR RYAN

So what comes first the chicken or the egg? If you employ a person on a contract of employment as a console operator this agreement does not say that the person will be employed as a console operator on the basis of their contract of employment. It says that they will be employed as a console operator as assessed by the employer. Are you reserving the right to change what may be in the contract of employment, just by making an assessment after you have employed them?---I am sorry, I don't really understand the question too well, but all I understand is that our line of work is running service stations, and our employees are employed as console operators.

PN509

Is there any possibility that you would reassess a console operator as requiring direct supervision and therefore making a level two employee?---No.

PN510

Is there any possibility of you reassessing a console operator and saying they require training and direct supervision and making them a level one employee?
---No, because we don't have driveway attendants.

PN511

No, I am not talking about driveway attendants. I asked you is there any possibility of you reassessing a console operator as requiring training and direct supervision and then making them a level one employee?---They are employed as console operators and we would judge their work as a console operator, and we would not be evaluating them as a level one. We would be employing them as a level three console operator.

PN512

When would you adjudge their work?---Their work is judged all day every day.

PN513

No. You said they are employed as a console operator and you would adjudge their work. Now when do you adjudge their work? Before you employ them, when you employ them or after you have employed them?---We judge their work - we judge it on the fact that if there is an opening at a service station where a console operator is required we employ a console operator.

PN514

So the only assessment by the employer is at the point of recruitment?---I don't think it can be more plainer than that.

PN515

Well I need you to be plain because the agreement does not necessarily say what you are saying. So I was glad you are. Now you have already said that if you employ a console operator you pay them at level three. That's correct.?---That's correct.

**** JAMES PATRICK ARTHURSON XXN MR RYAN

Paragraph 8.1.3 says that level one employees are employees who are on probation. Do you intend to employ probationary console operators on level one rates of pay?---No.

PN516

Why have you got, in your definition of level one employee, employees on probation?---At level one.

PN517

Where does it say, in 8.1.3, that probation is only applying to level one?---It doesn't.

PN518

We had a discussion only a few minutes ago about clause 7 and you indicated that every employee would be employed on three months probation?---Any new employee would be employed on probation.

PN519

Every new employee, including console operators?---Correct.

PN520

And 8.1.3 says the level one rate of pay is for employees on probation?---If they are under level one. If they were driveway attendants but we actually have console operators.

PN521

So 8.1.3 is to be read, or will be applied so that the only probationary employees who will be on level one rates of pay are level one probationary employees, those specifically engaged as driveway attendants. Is that correct?---If they are a level one as a driveway attendant they would certainly be probationary. We always have had that clause as - in our employment contract there are employees that ..... three months probation period, and that is going to continue under the CA agreement.

PN522

THE SENIOR DEPUTY PRESIDENT: Mr Arthurson is what you are saying that you only employ people as level three?---Yes. We have console operators your Honour. It is the mainstay of the business.

PN523

So when we look at clause 11, the wage rates, what you are saying is whether on probation or employment - sorry. How are they described after they have completed probation? But whether on probation or - - - ?---They will be a permanent employee.

PN524

Yes, or as permanent employees on an ongoing basis. The relevant wage rates are the level three?---Yes. We have never discriminated between a probationary staff member in the wage structure.

**** JAMES PATRICK ARTHURSON XXN MR RYAN

Why do you have level two and level one both in clause 11 and clause 8?---Your Honour it was there I suppose more as a comparison for ourselves, but that - if you looked at the wage as structured, as you say, they would be only level
three - - -

PN525

That is what I was wanting to clarify in my own mind. I wasn't quite sure what Mr Ryan was getting at, but it certainly tweaked my - certainly caught my attention, that, as I understand your evidence essentially you are saying that really it is only level three that is relevant to your employees?---In relation to level one we do have, we call - there is young juniors come in that do a bit of cleaning and shelf stacking, but I was - Mr Ryan was talking about the console operators, but there are shelf stackers, young blokes that come in and stack the shelves - - -

PN526

But your previous evidence was that all your employees are console operators?---I am sorry, in relation - yes I was - in relation to level three that is where I was talking about your Honour. As I say, they are all console operators. As I said before, we do have site supervisors and we do have some young chaps who come in on the weekends and they stack the shelves.

PN527

So you wish to revisit the previous evidence you gave, that they were all employed as console operators?---I apologise if that is the case.

PN528

From my notes your previous evidence was that all were employed as console operators and there was no occasion when you would employ CA1 and CA2, that is in terms of the award under the agreement?---Yes I apologise there. I was - I did overlook the number of junior staff that come in and stack the shelves and do a bit of cleaning for us.

PN529

What classification do they fall under?---They fall under level one your Honour.

PN530

When you say level one, do you mean level one as it is set out in the agreement?
---Yes.

PN531

So in terms of the classification structure in clause 8 they would be level one there?---.....

PN532

It there says:

PN533

Typical roles driveway attendant, cleaning, shelf stacking, general store assistant.

**** JAMES PATRICK ARTHURSON XXN MR RYAN

Does that then refer back to driveway attendants under the award, which is CA1?
---If that driveway attendant under CA1 included cleaning and shelf stacking and general store assistant, it would be your Honour.

PN534

Gentlemen, noting the time, this was the time that I said we would adjourn, and we will do so until 1.45. That can I remind you Mr Arthurson that over the lunch break you are on your oath and you are not to speak to anyone about your evidence, but you might just think through this area we have just discussed, and when you come back be able to clarify exactly who is employed on what basis. Because what previously on your evidence appeared to be fairly clear has now become rather muddied in my view, and opens up questions about the previous evidence that you gave. So you might think about how you can explain that clearly because I am sure that Mr Ryan has further questions he wants you to ask about it. On that basis we will adjourn until 1.45.

<LUNCHEON ADJOURNMENT [12.47 PM]
<RESUMED [1.48PM]

PN535

THE SENIOR DEPUTY PRESIDENT: My apologies to everybody that we have
changed room. We have changed back to where we were meant to start this morning, because of other demands elsewhere. So we are ready to resume unless there is anything.

PN536

MR RYAN: Mr Arthurson just prior to the luncheon adjournment we were dealing with the issue of the classification structure and the types of employees that you have got, and you answered some questions from his Honour in relation to that. To clarify the way in which clause 8 would work, you have indicated already that the only employees that you would have as level three employees are consol operators. Is that correct?---That's correct.

PN537

You have also indicated that consol operators would only be employed as level three and paid at level three. Is that correct?---That's correct.

PN538

In relation to level one, you indicated prior to the luncheon adjournment that you did have some juniors who were involved in shelf stacking. Is that
correct?---That's correct. I want to make a statement to the court. It wasn't my intention to mislead the Commission. I have gone over what I said during the lunch time break and yes there is other employees under level one, which would be the shelf stackers and cleaners your Honour.

PN539

How many of these shelf stackers are there?---Normally one or two a site.

**** JAMES PATRICK ARTHURSON XXN MR RYAN

What sort of hours would they be working, if there is one or two per site?
---Anything between three to four hours would be the normal.

PN540

Per day, per week, per month?---Per shift.

PN541

How many shifts would these shelf stackers work?---That would depend on the site. I couldn't give you exactly - - -

PN542

Can you give me any indication at all?---Some only work on weekends, others work during the week as well.

PN543

Can you give any indication of how many shifts they would work? If they work on the weekends is that only sort of one shift on the weekend, or would they work two shifts on a weekend?---It depends on the site again, but understanding it wouldn't be more than - it is normally about one.

PN544

Sorry, normally - - - ?---It is about one on the weekends.

PN545

One shift?---One shift, yes. But as I say that depends on the site and their requirements.

PN546

Would that be the same for those who might work during the week? Would they only work one shift during the week on this shelf stacking?---Not necessarily. They may work multiple shifts. When I say multiple, they might work more than one day, one shift a week.

PN547

You also mentioned, in 8.1.3, that the classification is intended to cover cleaning. Do you have anyone who is employed to do cleaning, that you would use under that classification?---When I say - that is straight cleaning. It would form part of their say shelf stacking, how they are employed. They have got a multiple of jobs, and cleaning may be one of those particular jobs that they do have to do.

PN548

What about driveway attendant? Do you have anyone who is employed as a driveway attendant?---No we don't.

PN549

Do you have any intentions of employing any driveway attendants?---No we don't.

PN550

Given your knowledge of the petrol retail industry, is the concept of a driveway attendant now really an historical anomaly that doesn't exist any more?---Look, there may be in the back blocks of Australia, but there wouldn't be too many now that do have driveway assistants, I wouldn't believe. Not in the metropolitan and country areas of Victoria, no.

**** JAMES PATRICK ARTHURSON XXN MR RYAN

So having that classification, or reference to that in the classification structure is really an irrelevancy?---Yes.

PN551

THE SENIOR DEPUTY PRESIDENT: I have noted there are a few in country areas of South Australia?---Maybe Queensland as well.

PN552

MR RYAN: You have put the work of the cleaning and shelf stacking also together with a concept called general store assistant. Do you have anyone employed as a general store assistant?---General store assistant, no.

PN553

What is intended by the phrase general store assistant?---We see that as being probably the total of the general store assistant, where they are doing the cleaning, the shelf stacking. It is all encompassed in the - it could be under general store assistant.

PN554

Would they do any retail sales?---No they wouldn't, no.

PN555

When you put these classifications together in your level one in the agreement, did you do any comparison checks with the classification structure of the award?
---It was all taken in conjunction with the award, yes.

PN556

Can you give an indication as to what classifications you looked at in the award that led you to putting cleaning, shelf stacking and general store assistant in at level one?---No I can't at this stage.

PN557

If I take you to the award itself. Have you still got a copy of the award with you?
---Yes.

PN558

At page 16 of the award, it deals with clause 8 of the award, the classification and wage structure. Do you have that?---Yes I do.

PN559

The first heading on page 16 is "pre-existing award classifications contained in level 1R1". Can you see that?---Yes.

PN560

Would you have had regard to any of those classifications when you were looking at devising your own level one classification structure?---Yes.

PN561

The first two are cleaning classifications. Car cleaner, washer and workshop cleaner, and the sixth one is office cleaner. So I could certainly see where you might get cleaning. Where does shelf stacking come into it? How would you have assessed shelf stacking as being a level one classification?---It doesn't appear there under the award, as a level one.

**** JAMES PATRICK ARTHURSON XXN MR RYAN

If I ask you to go to page 73 of the award. Page 73 is part of clause 38, which is the definitions clause of the award, and the second top classification. It is classification AG has got storeman. Did you have regard to that classification at all when you were looking at shelf stacking?---I didn't take that into account, no.

PN562

Are you aware as to where a storeman fits within the classification structure of the award?---No. I am not fully au fait with the award in relation to the huge amount of pages.

PN563

Going now to level two, we have clearly established you do have level three employees, and you do have employees that you intend to have as level one employees. Do you currently have any level two employees, or employees who would fit within level two of the classification structure of the proposed agreement?---Not under - no, not in that classification, no.

PN564

Do you intend to have any employees who will be employed as level two employees?---I really can't answer that because I don't really know the future of our - what might happen in the future.

PN565

Does the presence of level two give you the option of employing that class of employee in the future?---I guess it does.

PN566

Is that its intention of being in this agreement?---Well if you had roadhouse, an attendant, yes it would be.

PN567

You have the typical roles for level two as roadhouse attendant, food handling. Is that meant to be one term, or is that meant to be two separate roles?---Under there, see separate roles. It depends on how you classify. Road attendant and food handling could be seen as one classification.

PN568

It could be seen as one, it could be seen as two. But this is your agreement, and I am asking you what - - - ?---Because we haven't got that particular level within our organisation it is one thing that I haven't really defined at this point in time.

PN569

Can it be read that the roles, being plural, typical roles means that either a person engaged as a roadhouse attendant or a person engaged in food handling would be a level two employee?---Yes it would be.

PN570

When this agreement was made on 15 December did you still have part time employees employed then, on 15 December, or had you already converted them to casual?---No, they were still part time.

**** JAMES PATRICK ARTHURSON XXN MR RYAN

Is that the number that is identified in your statutory declaration?---That's correct.

PN571

With this agreement, certainly as a result of some questions that you have answered I have gained a clear impression that there are some employees of Endeavour Petroleum Pty Ltd who will not be covered by this agreement. Can you identify which employees of Endeavour Petroleum Pty Ltd will not be covered by this agreement?---Full time employees.

PN572

What classifications are full time employees employed in?---I am sorry I don't understand.

PN573

You could be a full time console operator, a full time shelf stacker. Is it a shelf stacker who is full time who would not be covered by this agreement?---We don't have full time stackers. All we do is have full time staff that may be a console operator or site supervisors. We don't have full time cleaners as such under this agreement.

PN574

But you could certainly employ full time shelf stackers?---Well we could, but we wouldn't.

PN575

Where does it say in your agreement that you wouldn't employ them?---That would be up to me as an employer, to have that right, whether we have them as full or part time, or casual. It would be all up to me, as an employer, on how we wish to employ our employees.

PN576

So you can offer full time employment to any existing employee if you wanted to?
---If I wanted to, yes.

PN577

If they were employed as a full timer they would then be outside the operation of this agreement?---They certainly would be, yes.

PN578

Currently, where are the full time employees currently employed?---At site level or - I am sorry?

PN579

Endeavour Petroleum Pty Ltd has a number of full time employees does it?
---That's correct.

PN580

Where are you full time employees currently employed?---Scattered throughout our network.

**** JAMES PATRICK ARTHURSON XXN MR RYAN

What are they employed as, in terms of the job description?---Console operator and also site supervisors.

PN581

There are no other full time employees in the company, other than those who are employed as console operators or site supervisors?---We do have people in admin.

PN582

What do you mean by people in admin?---We do have a full time employee in administration.

PN583

Do you have part time employees in admin?---We have a contractor under admin.

PN584

Is that person an employee?---No.

PN585

Do you have any part time employees in administration?---No.

PN586

Do you have any casual employees in administration?---No.

PN587

So there is three categories of full timers now. Console operators, site supervisors and administration, and they are all excluded from the operation of the agreement?
---That's correct.

PN588

In your statutory declaration, if you have it there can you go to question 1.4 of the statutory declaration. Clause 1.4, the question asks:

PN589

Answer this question only if this agreement applies to part or to a part of a single business as defined in subsection 170LB(3) of the Act.

PN590

And you have N/A as the answer. What do you mean by N/A?---Not applicable.

PN591

THE SENIOR DEPUTY PRESIDENT: Sorry, say again, I didn't hear?---Not applicable.

PN592

MR RYAN: Why do you say that N/A is the correct answer to 1.4?---I would have to look at 170LB(3) of the Act.

PN593

If I may show the witness that section?---I don't believe it is applicable.

PN594

Having regard to the question in the statutory declaration:

PN595

Answer the question only if this applies to part of a single business.

**** JAMES PATRICK ARTHURSON XXN MR RYAN

If it is not applicable do you mean, then, that the agreement applies to the whole of the business?---No I don't. When you say the whole of the business, are you talking about if it covers all casual employees, yes, it covers all of the business. Not just one site or two sites, it is all of the business.

PN596

So it covers all of the business, although it excludes some employees?---Correct.

PN597

If you employed a casual or part time employee in your administration area, where would they be employed under clause 8 of the agreement?---They are not covered by the agreement.

PN598

Is administration a part of the business that is not covered by this agreement at all?---Yes.

PN599

So it is not that a full timer employed in administration is not covered by this agreement, all of administration will not be covered by this agreement. Is that what you are saying?---We have a full timer who is not covered by this agreement who works in administration.

PN600

If you employed a casual or part timer in administration, would they be covered by the agreement?---No.

PN601

So no one employed in administration would be covered by this agreement?
---Correct.

PN602

So that part of the business known as administration would not be covered by this agreement?---Yes, that's right.

PN603

THE SENIOR DEPUTY PRESIDENT: That would be fairly apparent wouldn't it, by the operation of clause 5.1?

PN604

MR RYAN: What is apparent and what is stated, where there is clear conflict between what is apparent and what is stated then the questions have to be asked. And I don't wish to suggest that Mr Arthurson takes the swearing of the statutory declaration so lightly that he doesn't consider the answer to question 1.4 properly, but his answer in cross-examination is totally different from his answer in his witness-in-chief, which is his statutory declaration.

PN605

MR THOMPSON: With respect it is not.

**** JAMES PATRICK ARTHURSON XXN MR RYAN

THE SENIOR DEPUTY PRESIDENT: Carry on Mr Ryan.

PN606

MR RYAN: Is there any reason why the administration side would not be covered by this agreement, or why you would not have all of your employees covered by the one certified agreement?

PN607

THE SENIOR DEPUTY PRESIDENT: Is that relevant. I mean we have got an agreement before us, with an application for certification. It is fairly clear on its face to which employees in the business it is intended to apply by operation of clause 5.1. There are all sorts of hypothetical questions that could be asked. How is that relevant?

PN608

MR RYAN: It goes directly to the operation of section 170LU(8), and this is one of those areas where you, as it says in the opening part of 170LU(8):

PN609

Despite section 170LT the Commission must refuse to certify an agreement
if - - -

PN610

Then it goes on to do certain things. Now the way the statutory declaration is structured would invite you to completely ignore the operation of 170LU(8) because it doesn't apply to a part of a single business. Now that is improper in terms of an invitation to invite you, by giving false information to the Commission, which would have you not carry out your statutory duties under 170LU(8). My questioning has gone to show that, if nothing else, 170LU(8) is an issue which must be addressed by the Commission. And to the extent that the examination or the evidence in chief is misleading, it is proper to ensure that the evidence is properly before you.

PN611

THE SENIOR DEPUTY PRESIDENT: The opening submission was that the agreement applies to a single business. So if there is issues you want to raise by way of cross-examination - sorry. If there is evidence about whether that submission is correct or not then by all means go ahead.

PN612

MR RYAN: Yes. Which is exactly where I am going your Honour.

PN613

THE SENIOR DEPUTY PRESIDENT: But my question still applies though. Because LU(8) is dealing with part of a single business, from my recollection, and I haven't - my recollection is that is a fairly complex little sub-clause that from previous dealing with it on appeal, takes quite a little time to get your mind around how all the double negatives operate. So I haven't re-read that in detail here. But the question I suppose that would be on my mind is, is this a single business or not, or is it part of a single business? If it is stated to be - if the evidence is that it is a single business, then it doesn't necessarily have to cover all the employees in that single business. It can cover the employees which, in its own terms, it covers.

**** JAMES PATRICK ARTHURSON XXN MR RYAN

MR RYAN: That is exactly what 170LU(8) deals with. It allows an agreement to cover part of a single business, and to cover some employees in that part, or in parts of the single business. It is then the duty of the Commission to work out whether or not it is unfair to exclude certain employees or not. That examination simply can't - that examination would not have taken place and could not have taken place on the basis of Mr Arthurson's answer to question 1.4 on his statutory declaration. The implication on - the answer to 1.4 is there is no issue arising about this agreement covering a part of a single business. The implication being it covered the whole of the business. The cross-examination has now made it clear it covers part of the single business, and we have also clarified that there are groups of employees within the part that can be covered which are also excluded, and these are the questions which you have to determine at some stage, under 170LU(8).

PN614

Mr Arthurson if I can continue with the question. You have indicated that of the full time employees you have got someone, and by the way you expressed it I take it a single person, in administration who is a full timer. Is that correct?---Yes.

PN615

You have site supervisors which you expressed in the plural who are full timers. Is that correct?---Yes.

PN616

How many site supervisors would you have who are full timers?---The total would be full time. The total - - -

PN617

No, no. How many are full time. How many site supervisors?---There is 10 site supervisors.

PN618

Are there any site supervisors who are not full time?---There are part time supervisors.

PN619

Can you tell me how many part time supervisors there are?---If I am correct there would be two.

PN620

You have also indicated that, if I understand the answer that, again it is in the plural, there are full time console operators. How many full time console operators do you employ?---We have two.

PN621

How many non full time console operators would you employ?---That number could vary at any particular point, but the remainder of the sites' staff would be casual console operators.

**** JAMES PATRICK ARTHURSON XXN MR RYAN

Given your statutory declaration identifying that as at the date of the statutory declaration, 21 December, you had 79 employees. Is it likely then that over 70 employees will be console operators, because we haven't been able to clarify the number of shelf stackers and cleaners? Would the number of non full time console operators be over 70?---Yes.

PN622

What is different, apart from being full time or part time, between a full time site supervisor and a part time site supervisor?---Just the hours they work.

PN623

Duties the same?---Yes.

PN624

What is the difference between a full time console operator and a non full time console operator, apart from their full time or non full time status?---They are paid under the - they get the annual leave and sick pay. That is virtually the difference between, and also the pay rate per hour is slightly different. But their actual requirements of work are the same.

PN625

Your full time console operators, are they paid under the provisions of the Vehicle Industry Repair Service and Retail Award?---Yes.

PN626

If the work of the full time employees, the site supervisors or console operators, is the same as the work of the part time or non full time site supervisors and console operators, why did you exclude only the full time employees from this agreement?
---Because we go back to the start where under the Vehicle Repair Award we failed to meet the, or did not meet the requirements as part time employees. So where there was a requirement that they would have to be classified as casual under that award. So that is the reason why there is the casual employee. And the movement from the part time employee to casual.

PN627

In the structure of the agreement clause 3 of the agreement identifies the duration and scope of the agreement, and in attachment 3 you have comments in relation to clause 3, both in terms of the agreement and in terms of the award. Could I take you attachment 3 to your statutory declaration, and on that first page of attachment 3 you have clause 3, duration scope of the agreement, and you have got two paragraphs there. And then incidents of the award and session. You also then have, in the same block, a notation about clause 4, "parties bound", which is under the award area, and then a note. Under clause 4, parties bound, there is the comment:

PN628

Applicant is respondent to the award by virtue of membership of the Victorian Automobile Chamber of Commerce, VACC.

**** JAMES PATRICK ARTHURSON XXN MR RYAN

Is that accurate?---Look, over the lunch time period when I had a chance to look at my stat dec, that was an oversight by myself. We are not members of the VACC.

PN629

You say you are not members. Have you been a member of the VACC?---Not for a period in time, no. Quite a number of years.

PN630

Quite a number of years?---Yes.

PN631

In clause 4 of the agreement provides that the agreement will prevail over the award except, it says:

PN632

For the avoidance of doubt employees shall receive entitlements for occupational health and safety, redundancy, jury service, bereavement leave and long service leave, in accordance with the relevant and prevailing legislation or the award.

PN633

So there are a number of items which are not going to be dealt with in this agreement but are going to be provided by the award. Is that how it is to
apply?---Legislation or the award, yes.

PN634

The opening part of 4.1 says:

PN635

Except as provided or excluded by this agreement the conditions of employment of employees subject to this agreement shall be those contained in the award at the date that this agreement is certified by the Commission.

PN636

Is it your intention that if the award is varied in a month, two months, six months, that whatever variations may take place in the award would not apply, even if they were matters relating to redundancy, jury service, bereavement leave or long service leave?---Our intention would be not to vary the agreement.

PN637

No, not varying the agreement, but if the award is to be varied next month, for an issue relating to jury service or bereavement leave, is it your intention that those award changes would not then apply to employees?---They would apply because we are saying their prevailing legislation or the award would apply.

PN638

So if, and this is a year agreement, if in 18 months time someone wants to take bereavement leave will you use the award as it is now, or will you use the award as it is at the date the person wants bereavement leave?---We will use it as now.

**** JAMES PATRICK ARTHURSON XXN MR RYAN

So any changes that may have been made between now and when the person wants bereavement leave in the award they won't apply to the person?---No. Because this is a three year agreement. Based on the terms and conditions of the agreement.

PN639

Is that also the case with legislation? Whatever is in the Victorian Occupational Health and Safety Act at the moment will apply not what will be in the Health and Safety Act in a year's time?---Depends what you mean on that. We would always abide by the health and safety of any employee.

PN640

The health and safety legislation is in place at the moment, and will be in place at the date of certification of the agreement if it gets certified. Is that the law that you intend to apply to your employees during the life of this agreement?---As I say, the prevailing legislation includes the occupational health and safety, that would apply.

PN641

But is it the legislation prevailing at the time a problem happens in 18 months? So is it the legislation that is actually applying to everyone else in Victoria, or is it the Occupational Health and Safety Act as it applies today, because that is what clause 4.1 says?---My reading of the law I think that it would depend on - if something happened six months down, or 12 months down the track I think I would be bound by the actual prevailing at the time. Because I am sure the law would certainly be down on me if I breached the health and safety. I am sure that they would apply that. So whatever - that is one of our strongest points is health and safety and we would certainly abide by whatever is at the time, to make sure that our staff are looked after and protected at all times.

PN642

Would it surprise you if the law operated in exactly the opposite way, and that is that the law would only apply as it is at the date of certification of the agreement, for health and safety matters?---I can't answer that.

PN643

But if that did apply? If as a result of the certification of this agreement the health and safety laws that applied to your employees were those fixed as at the date this agreement was certified, would that surprise you as being - would that be a desirable outcome in your view?---I haven't got an answer to that. I'm sorry. As I say, whatever, we will always look after our employees to the maximum, and health and safety is one of, as I say, our strong point. And regardless of what might be at the time we will always make sure that we have got things in place that look after our staff.

**** JAMES PATRICK ARTHURSON XXN MR RYAN

Even if your staff don't have any legal entitlements under an Act, to those matters?---I am talking about the actual procedures and guidelines for our staff to actually be safe at work. I am talking about what we have in place at site level that protects the site. I am not talking about - if the law says that if a fine is $50,000 for a breach I am sure the law will come down on me in that regard. But what I am saying is that we put into place policies and procedures that look after our staff.

PN644

In clause 6 of the agreement you have provided that, at clause 6.2, the employer - in clause 6.1:

PN645

Employees initially are employed on probation - - -

PN646

And we have discussed that:

PN647

And thereafter have a permanent continuing employment relationship. They are engaged to work less than 38 ordinary hours on average per week on various rosters or engagement.

PN648

At 6.2:

PN649

The employer will use reasonable endeavours to provide all permanent employees at least eight hours work on average each week and according to reasonably regular rosters and hours.

PN650

Is there any guarantee of hours? Does any employee - - - ?---No guarantee of hours, no.

PN651

In clause 6.3 you identify that:

PN652

Employees may be required to perform duties at work sites of the employer other than their usual place of employment, provided that such work is within the limits of their skill base and competency.

PN653

You do use the words, "may be required to perform". Does that give you the right to order a person to work at another site?---The current arrangements that we
have - - -

PN654

No. Not what your current arrangements are, do the words of the agreement give you the right to order a person to work at another site?---As it says there, that we may require someone to actually to work in another site. We actually work with our employees. We don't - we certainly sit down and work and we make the best arrangements possible. But there may be times where an employee is required at another site we would certainly request that they would work at another site to facilitate that site, filling that particular roster.

**** JAMES PATRICK ARTHURSON XXN MR RYAN

So in normal operation you would consult with your employees about asking them to move, or to work at another site?---We do have employees currently that work at a number of sites, and that arrangement will continue.

PN655

But you also have the right to be able to ask employees who currently don't work at a number of sites to work at other sites?---Yes.

PN656

If you have got some employees who are currently working at a number of sites do they get paid any travel allowance to move between sites?---No, we actually base our - if there is a requirement to work at another site we have them in an area that is very close to their home base.

PN657

From exhibit 1 it doesn't appear that anything is close to anywhere. The closest on the map would be 15 kilometres Moe to Morwell. Would that be - - - ?---In terms of country miles that is very close.

PN658

THE SENIOR DEPUTY PRESIDENT: I note Mr Ryan that I live further away from the office than that.

PN659

MR RYAN: By choice, your Honour. There is nothing in this - - -

PN660

THE SENIOR DEPUTY PRESIDENT: It is nothing to do with choice, it is just a matter of what is a reasonable distance, and what is not, I suppose.

PN661

MR RYAN: Is there anything in the agreement that would prevent you from transferring an employee from Carrum Downs to Bairnsdale?---Common sense.

PN662

Where in the agreement is common sense? I asked you the question where in the agreement and you answered common sense, can you point to the agreement provision?---It is not in the agreement, but our company works on common sense.

PN663

There is nothing in the agreement that would prevent you from transferring an employee from Carrum Downs to Bairnsdale?---I can't see it, no.

PN664

If it is common sense that you wouldn't do it, why wouldn't you have a provision in the agreement that says that a transfer from Carrum Downs to Bairnsdale wouldn't occur?---We have been in business for 11 to 12 years now, and our employees - we have a great relationship with our employees, and they would understand that we would not require them to go from Carrum Downs to Bairnsdale. So we don't see a requirement to do that because it is not the company's business to, or intent, to actually put people at those silly arrangements.

**** JAMES PATRICK ARTHURSON XXN MR RYAN

You couldn't imagine having a falling out with an employee at Carrum Downs, and rather than sack them compulsorily transfer them to Bairnsdale?---It hasn't happened in the past, I can't see it happening now.

PN665

It is not beyond the realms of possibility is it?---Not in our business it wouldn't happen.

PN666

Then if it wouldn't happen why wouldn't you put something in the agreement to prevent it?---I don't think there is a requirement. As I said, we work closely with our employees. We have got a good relationship with them.

PN667

Clause 7.3 of the agreement relates to you having the right to terminate an employee's employment on one day's notice where the employee is absent from work for a period of two consecutive rostered shifts without the consent of the employer. Do you know of any similar provision in the award that would do that?
---No.

PN668

Why is that provision in the agreement?---We have it there because we require our staff to actually advise in a normal sense, give us enough notice that they attend work. If they don't we believe a two day consecutive roster shift without turning up for no reason is fair enough reason, a fair enough period in time.

PN669

When you have got two consecutive rostered shifts, is that to mean two days side by side, or two shifts side by side on a roster? So the shifts could actually be three or four days apart but they are two consecutive rostered shifts?---Two consecutive rostered shifts.

PN670

It says without consent of the employer. There is nothing in there about the reasons for the absence?---Be too numerous to mention.

PN671

So the reason for the absence is irrelevant, it is only whether or not you consent?
---Normally an employee advises an employer the reasons why he cannot, or she cannot, attend a shift. Now if we haven't got the consent, or understand why, we believe the two consecutive rostered shifts is a fair and reasonable period in time.

PN672

But it doesn't matter what the reason is, termination here is whether or not there is consent by you?---No. Yes it is - if you could read that it says there a period of two consecutive rostered shifts without the consent of an employer. The consent of employer, that would mean that we have not heard from the employee at all within that period in time.

**** JAMES PATRICK ARTHURSON XXN MR RYAN

Where does it say anything about notice by the employee, or contact? As far as I can read it, it only says termination can occur where there is no consent, but nothing to do with notice or reason. Isn't that correct?---Absent from work for a period of two consecutive shifts without the consent of the employer means that they haven't turned up for work, and there has been no consultation with the employer.

PN673

But where does it say that in clause 7.3? Let me put it to you this way. You might correct me if I am wrong. Does the agreement permit the employer to terminate an employee where there has been two consecutive rostered shifts, and where the employee has a good reason, and where the employee has contacted the employer and the employer simply withholds consent?---No. If there has been reasonable contact and there is reasonable reasons why the person cannot make the roster that would be taken into account. But - - -

PN674

Where does it say in clause 7.3 that that is exactly how it works?---It doesn't say that in section, it just says there that without the consent of the employer.

PN675

THE SENIOR DEPUTY PRESIDENT: Mr Ryan your previous indication was that you would be 45 minutes. You have been going an hour. How much longer do you anticipate this fishing expedition? Sorry, fishing expedition is the wrong word. This negotiation.

PN676

MR RYAN: That is a pejorative term which sort of says that I don't know what I am doing.

PN677

THE SENIOR DEPUTY PRESIDENT: This appears to be a continuation of a negotiation, rather than an address to things that the Commission is going to have to decide in certifying, and I think - give me some credit for intelligence, I understand what the issue is in relation to 7.3. I had already identified it and considered it myself in the context of the no disadvantage test. I understand what you are wanting to raise later on. You don't need to really belabour it so much. So unless there is something further you want to - - -

PN678

MR THOMPSON: I guess that - sorry.

PN679

THE SENIOR DEPUTY PRESIDENT: I mean the point I am making is we had no idea how long this was going on, and I think this is going beyond a reasonable time quite frankly, and I am going to ask you to be expeditious.

**** JAMES PATRICK ARTHURSON XXN MR RYAN

MR RYAN: Sorry, you are going to ask me to?

PN680

THE SENIOR DEPUTY PRESIDENT: Be expeditious.

PN681

MR RYAN: Yes. If you just bear with me I am just working out how expeditious I can be.

PN682

MR THOMPSON: Sorry, your Honour I might make a comment if possible? As I was saying earlier, just regarding the expediting of this process, where there are things that might be put more as submissions towards the back of this hearing, by Mr Ryan, then could we not seek to cut down these questions? I know that from correspondence received by the employer from Mr Ryan.

PN683

THE SENIOR DEPUTY PRESIDENT: That was the hint I was trying to give Mr Ryan.

PN684

MR RYAN: That is a hint I have taken.

PN685

MR THOMPSON: And the correspondence received has set out a number of submissions which we will be taking into consideration. So we do have advanced knowledge of those. Maybe we can just jump forward to those more sooner than later?

PN686

MR RYAN: I can be expeditious. I have gone through a very extensive document I had on this matter, but I think I can - - -

PN687

THE SENIOR DEPUTY PRESIDENT: Yes, I think you got a bit carried away didn't you?

PN688

MR RYAN: No, no, we are just being thorough. There are a couple of matters which I certainly do need to clarify. Mr Arthurson clause 7.5 of the agreement identifies that the parties agree to seek remedies in the case of alleged unfair dismissal exclusively under the terms and conditions of the Workplace Relation Act 1996. Is there any intention there to have this operate so that if a person was unfairly dismissed in terms where they alleged, say sexual harassment, that they be prevented from taking action under the Equal Opportunity Act or the sexual discrimination provisions of other legislation?---That's up to the employee.

PN689

But is the agreement intended to prevent them from doing that?---No. What we are saying there, is that if there is any sexual harassment, we have the right to dismiss the employee due to misconduct - - -

**** JAMES PATRICK ARTHURSON XXN MR RYAN

No, no. I am talking more about the victim who gets sacked, who alleges sexual harassment?---No.

PN690

Not the harasser, the person being harassed?---What is your question again I am sorry?

PN691

If a person - is there any intention that this will operate to remove a person's right to use other pieces of legislation that may also impact upon termination, such as sexual harassment legislation, or discrimination legislation?---I am sure common law would come into as well, wouldn't it?

PN692

And common law?---Well the standard thing is common law. It would come into a lot of things wouldn't it?

PN693

Yes?---No, we are not discluding that at all.

PN694

MR THOMPSON: Your Honour I don't even know that - if I might raise an objection? I am not sure that the witness has the ability to answer these type of what, in fact, quite technical legal questions of jurisdiction and other - - -

PN695

THE SENIOR DEPUTY PRESIDENT: I think Mr Ryan has completed his question on that matter.

PN696

MR RYAN: Yes, and I am happy with the answer. Your Honour taking to heart the desire that I would be expeditious I will conclude the cross-examination there. I am noting, in doing so, that you have indicated a familiarity with the concepts of no disadvantage and that you have already indicated an examination of the document itself, I will then put most of the material then in submission. The purpose of going through such an extensive cross-examination of Mr Arthurson was that often it is helpful to the Commission in these sorts of matters, even if it is a long cross-examination, to have the deponent of the statutory declaration clarify everything and given, in particular, the answers that we got in relation to question 1.4, I felt compelled to be more assiduous in ferreting out every piece of information, rather than try to make presumptions that the information would have been, and would be properly before the Commission. But on that basis I will complete the - that completes my cross-examination of Mr Arthurson.

PN697

THE SENIOR DEPUTY PRESIDENT: Thank you. Mr Thompson.

<RE-EXAMINATION BY MR THOMPSON [2.53PM]

PN698

MR THOMPSON: Thank you your Honour. This won't take anywhere near as long. Mr Arthurson if I could take you to the award, and Mr Ryan's version of the award, the more lengthy version, at clause 6(A) on page 13. If I can just get you to read in you own time, clause 6(A)(c). I think you are already familiar with that from what Mr Ryan was asking you. Can you just again confirm for me whether you have agreed each of these particulars with any existing casual employee, or indeed what were defined as part time employees under the state sector minimum?
---No we haven't.

PN699

So no one meets those criteria for the part time?---That's correct.

PN700

Can you then read to me please clause 6(A)(g)?---An employee who does not meet the definition of irregular full time employee and who is not a part time employee will be paid as a casual employee in accordance with sub-clause 6(f).

PN701

Thank you. You said before that - I think you were answering questions by Mr Ryan regarding why you had converted people to casual. Can you confirm that that was or was not the part of the award that you were taking account in doing that?---Yes it certainly was. Because we did not meet the clauses under 6(a) section(c) we were obliged to move our part time employees to casual, in accordance with that.

PN702

When you say that Mr Arthurson you say move them to casual. Do you mean that you have made them casual employees, in that that they can be dismissed at any time without notice, or do you mean that they remain part time and have a part time - they have ongoing employment, but are paid as casual?---Yes they have ongoing employment and they paid as casual.

PN703

In that regard, you currently have a large number, and I think you have said somewhere in the vicinity of 80 per cent of all employees who are casual the agreement converts them to permanent. Do you understand what that means by converting them to permanent employment?---Yes. It gives our casual employees status of permanent, which gives them a greater - sorry. It looks at their employment and with being permanent they have more security and that - we see that as a great benefit to all our employees who have moved over to casual.

PN704

Now you have stated already that the agreement only applies to some types of employment. That is people who meet the classifications in the agreement, as casual driveway attendant, roadhouse, or casual console operator, more described in the agreement as classifications one, two and three, if anybody were employed by you at a time in the future, and you had agreed with them all of the requirements that we were just talking about in relation to 6(a), subclause(c), ie, that you had agreed with them the hours to be worked each day and the days of the week - the days to be worked each week, the actual starting and finishing times, and that all variations must be writing and the minimum daily employment, et cetera, et cetera. Do you believe that they would be employed under the award as a permanent part timer or would they be employed under the agreement, if you met all of those criteria?---If we met all that criteria they would be part time under the award.

**** JAMES PATRICK ARTHURSON RXN MR THOMPSON

And they would be paid according to the award?---Paid according to the award, yes.

PN705

But no one does meet those criteria?---No.

PN706

THE SENIOR DEPUTY PRESIDENT: Would there be any advantage to them to be paid under the agreement?---Under the agreement?

PN707

Yes?---As part time, you mean? I am sorry.

PN708

If a person was to be a part timer, or more correctly in terms of the definition, were to meet the definition of a part timer under the award, and therefore to be able to receive the benefits attaching to that type of employment under the award, would there be any advantage to them in being under this agreement?---We don't see any disadvantage of them moving from part time to casual. They still keep their status. They become a permanent employee but we could not meet that criteria under (c) because it restricts our business too much on a daily basis. There is no way that we could give employees set hours of work each day, set rosters, finishing times. We need that flexibility within the business to be able to roster staff at different times. It would certainly make it nearly impossible to run a site without having that flexibility of being able to roster staff at different times and different hours.

PN709

MR THOMPSON: So would you either agree or disagree with me that if you had to employ everybody in the manner specified under 6(A)(c) either there would be fewer employees, and the site would actually only be able to fewer hours. Would that be the likely consequence?---That is a likely outcome of it. Yes we would certainly have to look at the operation of the site. That may mean, it could mean that if we had to go by the part time under the award we would certainly have our hours cut back at a number of sites, and definitely we would have to certainly look at employee numbers. Because we could not, as a company operate as we do currently under that arrangement.

PN710

Mr Arthurson there has been a number of questions asked regarding the agreement, and I don't mean to go into them too much more, except to - when I say the agreement, I mean the manner in which the agreement was provided to employees. We have looked at the sites and the areas where they work. Can you tell me why you chose to have four meetings in the areas that you chose to have those meetings, and just why you did it that way?---We did that to give employees every opportunity to understand the CA. If they had any questions to be able to get to a meeting and voice their, maybe concerns, or whatever, within that meeting. And that is the reason why we had it at four different locations, to give everyone the opportunity to be able to get there and put their voice.

**** JAMES PATRICK ARTHURSON RXN MR THOMPSON

If they hadn't have been able to attend, would they have been able to call you on the phone and indeed - I guess the question is did people call you outside of those meetings with questions about the agreement?---Yes. The staff were advised that if they could not meet, or get to these meetings, I was available 24 hours a day to make appointments with them, and I had quite a number of staff who rang me and I took the time to go out to a number of the sites to sit down with them and go through the agreement. So in that regard it worked very, very well.

PN711

So you then went out to the sites and met with them on a one on one basis?
---One on one. If there were two or three who wanted to get together we did that as well. But whichever way they wanted it to happen it did happen.

PN712

So outside of those four meetings as specified, there were actually other meetings that were taking place as well?---There was other meetings held, yes.

PN713

I understand that there were the meetings held then to cast the votes in the ballot, but you might also confirm, there was also the opportunity for postal votes?---Yes that's correct. We sent out a letter to all staff, sorry, to all site supervisors asking them to list any employee who wished to register for a secret ballot, and that was done.

PN714

By postal?---By postal vote, sorry, yes.

PN715

I think - actually it is already dealt with in the stat dec but there was quite a number of those postal ballots. Do you recall how many postal ballots there were?---Without looking - it was in one of those letters.

PN716

You have stated that you were at a number of the meetings where the ballots were actually cast at the secret ballot meetings. Did you see anybody vote? Do you know of anybody's actual votes?---No. I removed myself to the back of the room and allowed them to cast their own vote, and give that across to the employee nominated, and everything was sealed up. I would have no idea who voted which way. It wasn't my intent either to be a part of that.

PN717

In relation to the classification that is listed in clause 8 of the agreement, I might just get you to go to that, the agreement specifies three different types of employees. Can you just confirm again for the Commission that employees are classified by you into one of those roles at commencement, and that - whether or not you pay them at a different rate, or do you pay them at the rate that is commensurate with either of those classifications whilst they are employed?
---Yes we pay them as the classifications are, and we pay them in accordance with those levels. The only thing I might say there is that we don't discriminate between a person on probation, we actually pay them the console operator's rate. We see them as doing the job of the console operator so we pay them in accordance.

**** JAMES PATRICK ARTHURSON RXN MR THOMPSON

So that reference in clause 8.1.3 to, where it says:

PN718

And/or on probation.

PN719

That makes no difference to any of the classifications?---No it doesn't make
any - - -

They are paid according to the - you have stated previously that the company operates 10 service stations, and I think we have seen where they operate. Can you tell me which of these service stations doesn't the agreement apply to?---It applies to all.

PN720

So it operates across all of those service station?---All those service stations, yes.

PN721

There is no other part of the business where it doesn't operate?---No.

PN722

THE SENIOR DEPUTY PRESIDENT: Well presumably it doesn't apply to administration?---Excluding administration your Honour, yes.

PN723

Is administration dealt with as a separate part of the business, or is it all seen as one type of business?---Depends on how you look at it. We actually run the service stations and those particular employees. Administration is - we have a separate arrangement with the administration person.

PN724

Is that person employed by Endeavour?---Yes indeed.

PN725

If I take you also to clause 7.3 of the agreement, regarding your right to terminate employees, could you just confirm - I might also take you to clause 6.4. If you can read that to me?---This agreement will be read in conjunction an employment contract and company policies as amended from time to time. These additional documents must not vary the minimum entitlements of this agreement.

PN726

Of those, can you just answer, with the company policies is there a company policy regarding calling if one is sick and cannot make their shift?---Yes there is a requirement, and there is a policy yes.

PN727

It is a written policy?---Written policy.

PN728

It is a requirement for people calling before they are - if they are not able to attend?---Yes.

**** JAMES PATRICK ARTHURSON RXN MR THOMPSON

So then in relation to clause 7.3, it is presumed and you explain would it be presumed that an employee would have been required to have called in had they not been able to attend two consecutive shifts?---Yes, that is correct. We would expect them to contact the employer.

PN729

You have also stated that there are no guarantee minimum number of hours provided to employees. Would you be prepared to provide a number of minimum hours if necessary under the agreement? Is that a sort of thing you - a defined number of hours per each employee per week?---No we just couldn't do that. We would certainly - we need that flexibility to be able to look at the rosters and the availability of staff, and have that flexibility of where we can have the hours and the ability to change rosters.

PN730

Finally, you said that you have been in operation for, was it nine or 10 years?
---Yes over 10 years.

PN731

During that time have you been operating under the terms of the state sector minimum?---Yes.

PN732

Have you had a large number of disputes?---No. We have - as I said earlier, we have got a very good relationship with our staff, and anything that may raise its head as an issue or a problem it is always handled internally and it is always resolved. We have never had too many problems in that regard.

PN733

So you have not found it necessary to create, or work under documents, or things like awards that have extensive long - that try to define everything, I think as Mr Ryan was saying to you. With moving between sites you could have put it into the agreement. Has your business, would you say it is operated better with fewer conditions than you might expect it would with more conditions?
---Certainly. We work in the parameters of the, as we said, the sector award. We have always been under that. Also we have got our policies and procedures which all our staff get a copy and sign off has been the way the company operates. That has worked extremely well over the period in time that we have been operating, and anything more onerous than working under the policies and procedures we see as only making the job more difficult and also it makes the employee a little bit unsure on how they are operating with the company. I think it is important that the company and the employee has a great relationship. And that is the way we have actually kept it over the years. That is why we don't have a great turnover of staff. We have a good bunch of employees who we get along with very well, and it is working extremely well.

**** JAMES PATRICK ARTHURSON RXN MR THOMPSON

Thank you very much, I have no further questions.

PN734

THE SENIOR DEPUTY PRESIDENT: Mr Ryan.

PN735

MR RYAN: There is a matter which I would ask to have the opportunity of asking a further question of Mr Arthurson, and that is because Mr Thompson went specifically to clause 6.4 of the agreement. One of the clauses which I specifically did not touch. It was on my list but I accepted your enjoiner not to be too lengthy. But given that Mr Thompson specifically asked a question relating to clause 6.4 there is a matter which I would wish to clarify with the witness.

PN736

THE SENIOR DEPUTY PRESIDENT: Certainly.

<FURTHER CROSS-EXAMINATION BY MR RYAN [3.14 PM]

PN737

MR RYAN: Mr Arthurson if you have a company policy which did on the face of it vary any of the minimum entitlements of this agreement, you would expect that the agreement would simply prevail over that company policy?---We don't have company policies that are in breach, or that would cause a concern under 6.4.
If you had a company policy that was in conflict with the terms of the agreement would you expect that the agreement would prevail over the company policy?
---The agreement, this - our CA agreement?

PN738

Yes?---Yes.

PN739

Thank you.

PN740

THE SENIOR DEPUTY PRESIDENT: Mr Arthurson I think that means you are excused as a witness. Thank you.

<THE WITNESS WITHDREW [3.15 PM]

PN741

THE SENIOR DEPUTY PRESIDENT: Mr Ryan I think we are still with you because this morning Mr Thompson made submissions. You are wanting to say something different?

PN742

MR THOMPSON: I understand that Mr Arthurson needs to catch a flight and unless, if there is anything else, he can stick around, but otherwise I know he was quite keen to get to the airport.

PN743

THE SENIOR DEPUTY PRESIDENT: Having been excused as a witness he doesn't need to stay. I think Mr Thompson had made submissions this morning. You wanted to cross-examine, so I think we are still with you.

PN744

MR RYAN: Given the time, what time was the Commission intending to - - -

PN745

THE SENIOR DEPUTY PRESIDENT: I am going to finish this today.

PN746

MR RYAN: Your Honour in relation to - - -

PN747

THE SENIOR DEPUTY PRESIDENT: By the way, in saying that, the Commission normally sits till four. We listed the matter this morning at 10 o'clock. So in saying my intention is to finish it today I am not expecting that the submissions will be long.

PN748

MR RYAN: I am expecting very long submissions on the basis that the material that I was going to traverse with Mr Arthurson, virtually on each and every clause of the agreement, I have taken note of what you said about truncating that part of it, and then putting them in submissions. So my submissions would be to go through this very much with a fine tooth comb, in particular in relation to the no disadvantage test, but also to go through very carefully all of the provisions of 170LK, 170LT, and 170LU. I am - - -

PN749

THE SENIOR DEPUTY PRESIDENT: Yes that doesn't necessarily mean that the submissions will be long though, does it?

PN750

MR RYAN: It doesn't, but every time I am asked for an estimate of time and I will say it will only be half an hour or an hour I have always found that two days later someone saying, well, when is that hour up?

PN751

Your Honour in relation to this agreement we say that the agreement is not properly before you because of non compliance with 170LK. The first requirement of 170LK is that the employer may make the agreement with a valid majority of the persons employed at the time whose employment will be subject to the agreement. The issue of a valid majority in 170LK(1) is defined in 170LE, and 170LE provides:

PN752

For the purpose of this part a valid majority of persons employed at a particular time whose employment is or will be subject to an agreement make or genuinely make the agreement or approve or genuinely approve the agreement.

PN753

Then that occurs:

PN754

If the employer gives all of the persons who are employed a reasonable opportunity to decide whether they want to make the agreement or give the approval and either a majority of persons or a majority of persons who cast a valid vote genuinely decide that they want to make the agreement.

PN755

So there is certainly three separate steps in the process of determining whether or not 170LK(1) has been met, and part of that process of determining a valid majority is whether or not the employees make or genuinely make the agreement or approve or genuinely approve the agreement. The making or the approval of the agreement is necessarily conditional upon the ability of the employees to exercise their choice properly. In other words it has to be an informed choice. Anyone can fill in a ballot paper, but if you don't know what you are voting on because you can't read the document or you simply have no idea what the question means doesn't mean that you have cast a valid vote, and the criteria here is to make or genuinely make the agreement or approve or genuinely approve the agreement. And it is the genuineness issue which we say is quite clearly lacking in relation to this agreement. In particular, because - - -

PN756

THE SENIOR DEPUTY PRESIDENT: In relation to LK it is "make the agreement" that applies isn't it? I mean section 170LE is a section that is called up by a number of other sections, and if we look at LK(1) the employer may make the agreement. So I take it therefore that when we come to read LE, and things are stated in the alternative, presumably we are dealing with the "make the agreement" alternative? Because "genuinely make" appears elsewhere in the Act. And I am not sure in your argument whether anything hangs on that, but I just - - -

PN757

MR RYAN: I don't know whether anything does hang on it.

PN758

THE SENIOR DEPUTY PRESIDENT: But just picking up the point that when you read LE by reference to LK I take it that we are to read it as "make the agreement".

PN759

MR RYAN: Yes I will accept that it is in that simple form of "make the agreement". However that wouldn't encompass the making of an agreement that was made through coercion, threats, violence or any of those sorts of provisions.

PN760

THE SENIOR DEPUTY PRESIDENT: Indeed, yes.

PN761

MR RYAN: So whether or not it is "make" or "genuinely make" I think that there is probably a very slight degree of difference between the two, but not an issue of great substance, and certainly not one that I think would trouble us in this particular matter. One of the key issues in relation to making the agreement is that there must necessarily be an understanding by the persons as to the document that they are making, or the agreement that they are making. And quite clearly 170LK(7) requires that:

PN762

Before the agreement is made the employer must take reasonable steps to ensure that the terms of the agreement are explained to all of the persons employed at the time of this employment will be subject to the agreement.

PN763

The language of that makes it very clear that this is one of those steps which comes well before the making of the agreement, in which case the making of the agreement has to be conditional upon an understanding and a proper application of 170LK(7). And 170LK(7) does not, or cannot be satisfied by the employer giving employees an opportunity to ring and ask the question. It is very much put in the positive, in terms of an obligation on the employer.

PN764

The employer must take reasonable steps to ensure that the terms of the agreement are explained to all the persons employed at the time whose employment will be subject to the agreement.

PN765

There are a number of elements in that. It has got to be all of the employees, not some of the employees. And then in relation to all of those employees there have to be reasonable steps, and the reasonable steps are designed to ensure that the terms of the agreement are explained. So there has to be an explanation of the terms of the agreement. There is two possible ways of explaining the terms of the agreement. It can be in the literal sense of "this word means this", and "this word means this", and if I put the words together we have an agreement. In other words, just simply going through and explaining that Act means Act and where Act says it means the Workplace Relations Act 1996 that I have now explained the terms of the agreement. In other words, explaining the terms can be that very literal sense of what do these words mean in English, and nothing other than that.

PN766

I would say that that is not the meaning that needs to be attached to that phrase explaining the terms of the agreement. What is required, in my submission, is that it is explaining what these terms will do in relation to the employer employee relationship. And that explanation must necessarily identify what they will not do, or what they will do to other instruments that may also apply to the employer employee relationship. For example, in clause 4 of the agreement where it uses the terms:

PN767

The conditions of employees subject to this agreement shall be those contained in the award at the date that this agreement is certified by the Commission.

PN768

In my submission it is not sufficient to simply identify what those words mean in their literal sense, but to explain the operation of clause 4, the relationship of the agreement to the award would require the employer to explain what in the award is going to be overridden by the agreement. Because as clause 4.1 says:

PN769

Where there is inconsistency between this agreement and the award this agreement shall prevail.

PN770

As a simple statement that is generally meaningless to most persons who are not industrial relations practitioners who have a thorough knowledge of both the terms of this agreement and the terms of the award. And with respect to most industrial relations practitioners in Australia this is one of the hardest awards to have a clear understanding of. Having worked for the SDA for 10 years it is still one of the hardest awards I find, that I have to trawl through, because it is so complex in its structure and so difficult to read.

PN771

THE SENIOR DEPUTY PRESIDENT: I note that my copy goes to page 207. When I say my copy, it is the Commission's loose leaf version. It is the current award, at page 207.

PN772

MR RYAN: Yes. I could only reduce my copy down to 112 pages by reducing the font size quite considerably. And that is a real issue in terms of the requirements under 170LK(7). There are many other awards and agreements where the awards themselves are relatively short and simple documents and explaining the terms of an agreement is relatively easy in comparison with explaining the terms of the award. But once one enters into the realms of the Vehicle Industry Repair Services and Retail Award we would submit that there is a requirement inherent in the wording of 170LK(7) that the explanation of the terms of the agreement must be in a manner where an employee and every employee is able to understand the effect of the agreement against the effect of the award. From the evidence of Mr Arthurson himself it is quite clear, in our submission, that even - - -

PN773

THE SENIOR DEPUTY PRESIDENT: Why do you say that?

PN774

MR RYAN: Because if you don't - - -

PN775

THE SENIOR DEPUTY PRESIDENT: In other words, something the Commission must do in certification is to do the no disadvantage test. But why should - why do you say that section 170LK(7) is to be read by importing that notion?

PN776

MR RYAN: It goes to whether or not any employee can make the agreement and make it freely and consciously, if they are simply kept in ignorance of the competing instrument.

PN777

THE SENIOR DEPUTY PRESIDENT: Yes, but 170LK(7) deals with the employer's obligation.

PN778

MR RYAN: Yes. Because it is the employer who wants to make the agreement.

PN779

THE SENIOR DEPUTY PRESIDENT: And in relation to the valid majority in section 170LE, there the employer gives al the persons so employed a reasonable opportunity to decide if they want to make the agreement.

PN780

MR RYAN: Yes. And the process of making a decision to make the agreement or to reject the agreement is to be able to have the capacity to weigh up what is offered by this agreement, as against what would be in place if this agreement does not operate. These agreements don't operate in a vacuum your Honour, and on that basis - - -

PN781

THE SENIOR DEPUTY PRESIDENT: Yes I understand that. But it is the terms of the agreement that are to be explained under section 170LK(7) isn't it?

PN782

MR RYAN: Yes.

PN783

THE SENIOR DEPUTY PRESIDENT: So you are saying that by inference that is also to be read as what is not in the agreement?

PN784

MR RYAN: Yes, because to the extent that there are provisions in the award. A simple example. There is an award provision which requires the employer provide a 15 minute tea break to employees. Now the meal break clause in the hours of work clause in the agreement do not refer to tea breaks. It could simply be explained by the employer that the agreement will provide hours of work which are not to exceed 10 per day, or 38 hours per week, and that if you work so many hours you will get a meal break, and just ignore the fact that the award provides for a tea break of 15 minutes.

PN785

MR THOMPSON: I just wish to clarify your Honour that clause 15.2 of the agreement actually does provide a say in the matter. A 20 minute paid rest break during any eight hour shift, which lines up directly with the award. And what Mr Ryan was saying is that this has not been taken into account is actually incorrect. Regardless, I think he was making a point - - -

PN786

THE SENIOR DEPUTY PRESIDENT: You will have your opportunity to respond.

PN787

MR RYAN: Your Honour clause 15.2 is the lunch break provision, the standard, one would say, rest break meal break. But there is an additional requirement in the award for a 15 minute morning or afternoon tea break, which is in addition to a 20 or more minute main meal break. It is quite possible on one view for the employer to explain the terms of the agreement by saying the agreement provides you with a 20 minute paid break but ignore the reality of a 15 minute tea break, which is provided in the award.

PN788

By not referring to what is not in the agreement may be a quite valid way of saying I am explaining the terms of the agreement. I am telling you what the agreement does, but I am not going to give you the information that you require to make the decision on whether or not your award entitlements will be supplanted by this agreement. The whole notion, in my submission, of being able to decide whether or not to vote for this agreement must be based upon the concept of reasonable knowledge and the ability to caste a - or make a decision based upon a reasonable consideration of the issues.

PN789

In the absence of a comparison between the award and the agreement being available to the employees, and we note that Mr Arthurson said the material which was attachment to an attachment 3 was never made available to the employees. In some respects I am glad that it wasn't because attachment 3 is so horrendously wrong in parts that it probably would have misled them more than anything else. But the fact that, on Mr Arthurson's own evidence, there was no documentation which was given to the employees which explained the comparison between the award and the agreement, puts the workers in a position of having to decide on this agreement without knowledge of the award, and Mr Arthurson says that no one has been employed under this award in the past, they have been employed under the minimum wage orders in Victoria, which is schedule 1(a) of the Workplace Relations Act.

PN790

Those same employees, even if they got a copy of the award, would have been ill equipped unless they had done some form of legal or industrial relations training to make head or tail of the provisions of the award. In which case for the employer to satisfy the requirement of 170LKI(7), in our submission, the requirement is that the terms of the agreement have to be explained in such a way that those terms are intelligible in comparison with the award. Without that it is not possible for an employee to make an informed or proper decision as to whether or not the employee wants the agreement, or wants to have the benefit of the award, and the award would have applied - the award does apply to Endeavour Petroleum Pty Ltd as from 1 January of this year, by virtue of it being a common rule. Because there has been - - -

PN791

THE SENIOR DEPUTY PRESIDENT: What is the effect of, at the time this was being considered, that that was prospective application of a common rule award? In other words, that wasn't the comparison at the time the employees were being asked whether they wished to make the agreement.

PN792

MR RYAN: It raises an issue of timing which I would express a view on but it doesn't seem to be a view adopted by the practice of this Commission. That where the employer intends to make an agreement, so this is prior to initiating the first notice which Mr Arthurson did on 22 November, where he gave the notice of intention, and this is the notice required to be given under 170LK(2). In my submission where a notice is required to be given under 170LK(2) and the employer is not bound by a relevant award, then the employer has an obligation to make the application for a designated award prior to giving the notice of intention to make the agreement. Because only after the Commission has determined that there is a designated award is there the capacity of either the employer , or the capacity of both the employer and the employees to consider the agreement in relation to the award.

PN793

Unfortunately I have noticed that it is becoming a common practice for a number of non union agreements to be processed by this Commission with the applications under 170XF being dealt with one minute or two minutes prior to the determination of the application for the certification of an agreement. One wonders what will happen the day the Commission decides that the award to be designated is not the award that was actually applied for. In which case the whole of the process of the making of the application would be quite severely in doubt.

PN794

THE SENIOR DEPUTY PRESIDENT: I can tell you, because I dealt with exactly that situation a week ago.

PN795

MR THOMPSON: Was it certified?

PN796

THE SENIOR DEPUTY PRESIDENT: No it wasn't certified. They have had to go back again.

PN797

MR RYAN: Yes, and on that basis then, in my submission, there should have actually been a 170XF application made prior to 22 November by Mr Arthurson, in order to determine quite properly what would be the award to be applied for the no disadvantage test. In the circumstances, and certainly in relation to Victoria, where a number of agreements have been processed in terms of being made with employees immediately prior to December, I accept that there has been a genuine expectation on the part of all parties, including the Commission, that the common rule awards would apply as from 1 January. And given that most of the common rule hearings had been going on since July there was a reasonable expectation for that. I must say, in my own industry the Victorian Shops Award has not yet been made a common rule, nor has the National Fast Food Award, because of particular difficulties that the association is having with employer organisations and it is better to resolve those difficulties in a consultative environment rather than resolve them before the Commission. But it does put, in some areas employees would be gravely at risk if they were anticipating the early start of an award, and then seeking to come along to the Commission expecting that a common rule award would be in place, as has clearly happened in this occasion where there has been no 170XF application.

PN798

Because of that timeframe that I say should apply, then it makes it very clear that in my submission, at the time the notice of intention is given under section 170LK(2) there should either be a relevant award, or there should be a designated award at that point of time, so that 170LK(7) can be complied with by the employer being able to clearly and unambiguously explain the terms of the agreement, vis a vis the terms of the award, which will be the award that either does actually apply, if it is a relevant award, or would be used for the no disadvantage test. And certainly in relation to the common rule awards the expectation that as from 1 January a number of these awards were going to be automatically applied to the employers would have made it even more incumbent, I say, on the employer to very carefully explain the options to the employees, as to what the agreement would offer and what the award would provide, as from 1 January.

PN799

It is identified that the RS&R award was actually dealt with and confirmed by SDP Acton on 25 November 2004, as a common rule award. Which means that only three days after Mr Arthurson's giving notice of intention to make this agreement it would be common knowledge within the industry that the RS&R award was going to be a common rule award with effect as from 3 January 2005. That also was not uncommon. The Commission endeavoured as much as possible to deal with as many of these matters in November as it possibly could. Very few were dealt with in the middle part of December because there was a great concern to enable the Victorian government, the federal government and all the employer organisations an opportunity of advising respective employers of the operation of common rule awards.

PN800

That being the case there certainly, in my view, was an onus and an obligation arising under 170LK(7) for the terms of the agreement to be explained , vis a vis the terms of the award, so that the decision could be made on an informed basis. Even if the Commission is satisfied that the communications which Mr Arthurson may have had with his employees at the four sites where he conducted meetings to explain the terms of the agreement, in my submission the Commission cannot be satisfied at all that the employer took reasonable steps to ensure that the terms of the agreement were explained to the employees at Bairnsdale, Wurruk, Morwell, Moe, Korumburra or Cowes.

PN801

THE SENIOR DEPUTY PRESIDENT: That is because they would have had to travel to attend meetings?

PN802

MR RYAN: Exactly. And there was no provision given to them to be given paid hours to attend, or any assistance in travel costs. We didn't explore all of the many potential issues which may arise as to why a person who is employed at Bairnsdale would find it impossible to attend a five o'clock meeting at Stratford. But given that there are 33 female employees, 79 employees in total, and some junior employees, it is quite easy to imagine a raft of reasons why persons either are unavailable at five o'clock at night to attend the meeting 45 or 50 kilometres down the road. There are numerous reasons why there could be genuine problems in persons having to attend the meetings at the sites located. Even looking at the distances from Cowes to Stratford is about 40 kilometres, and from Korumburra - not Stratford, to Grantville is about 40 kilometres, and the same from Korumburra. To travel from Korumburra to Grantville being either a torturous route nearly going back as far as Lang Lang and then down the Bass Highway, or going through some, what looks like some quite minor country roads to get from Korumburra across to Grantville.

PN803

THE SENIOR DEPUTY PRESIDENT: Presumably this is major roads only?

PN804

MR RYAN: No, I tried to check these out. They are certainly secondary roads. They are all tarred roads, asphalt roads, but they are secondary roads. But what it clearly shows is that - - -

PN805

THE SENIOR DEPUTY PRESIDENT: What is wrong with secondary roads? I mean my experience of that part of Victoria is the roads are excellent.

PN806

MR RYAN: And might very well be the case if you are paid to attend a meeting, but might not be the case if you have got to borrow someone's car. It might be a junior employee. They are probably all over 18 but there is no clear statement of that - - -

PN807

THE SENIOR DEPUTY PRESIDENT: But what about the element in the notice where Mr Arthurson says in the notice that was sent to each employee on - the one we have on file that is dated 22 November:

PN808

If you are unable to attend the meeting in your area or at another location please contact me directly so that I can explain the agreement to you.

PN809

And the evidence was that there were a number of contacts, and indeed further meetings did take place on site or either one to one, or with two or three employees, where there were a number. So what is wrong with that?

PN810

MR RYAN: It simply is not a reasonable step. It is not reasonable to ask employees who don't know about agreement making, who don't know about the terms and conditions of the prospective common rule award to simply pick up the phone and say, yes, here is my list of questions I will ask them. The onus is on the employer to take reasonable steps to explain and we say it is not - - -

PN811

THE SENIOR DEPUTY PRESIDENT: And that is what the notice says.

PN812

Please contact me directly so I can explain the agreement to you

PN813

MR RYAN: We say that is not a reasonable step. The reasonable step is to be pro-active in giving the explanation, not in sitting back and saying, if you want an explanation contact me. In our submission - - -

PN814

THE SENIOR DEPUTY PRESIDENT: No, no. You have got to read it in context. What he says is:

PN815

If you are unable to attend the meeting in your area or at another location please contact me directly so I can explain the agreement to you.

PN816

So the primary mechanism is attending the meeting, either in your area or organising to go to another location. But whether that is likely or not is another matter. The secondary mechanism is, if you contact me directly, by inference and we know this happened from the evidence, I will make other arrangements to explain the content to you. Why isn't that reasonable?

PN817

MR RYAN: If the language of the Act obligated the employer to create reasonable opportunities for employees to receive an explanation, if they wanted it, then I might say, yes, it would pass. But the language of the Act is an obligation that the employer must, and it is in obligatory terms, must take reasonable steps to ensure that the terms of the agreement are explained. Not to create an opportunity for people to receive an explanation, if they want it, but must take reasonable steps to ensure that the terms of the agreement are explained. And when you take those three words, "must ensure" and "are" it is a pretty heavy onus on the employer to be pro-active in going to the workers in one form or another and explaining to them. Not saying if you want an explanation pick up the phone and ring me. That might be creating a reasonable opportunity for people to receive an explanation if they so desire. But this is different.

PN818

Must take reasonable steps to ensure that the terms of the agreement are explained.

PN819

Given even the answer of Mr Arthurson in his re-examination by Mr Thompson it is clear that Mr Arthurson had the capacity to visit every site. If he had the capacity to visit every site, and I suspect that he has got the capacity to visit site on a regular and continuing basis, considering that it is his company, he could have, without much difficulty, visited every site. He also could have visited every site at pre-arranged times at different times during the week so that the different groups of employees, the different shift patterns or whatever, had the opportunity of having the terms of the agreement explained to them. But he didn't. He chose, for whatever reason, to hold four site meetings with the expectation that people would either travel quite long distances at their own expense and on their own time, or that people, his employees, would have such a knowledge of the broad processes that they would be able to ring him up and ask for an explanation of the terms of the agreement and know what he was saying.

PN820

The course of conduct that he undertook we submit, in the very strongest terms, is not conduct which satisfies the requirements of 170LK(7). It was reasonable for him to do a lot more, and doing a lot more would have been taking reasonable steps to ensure that the terms of the agreement are explained. The fact that a document such as attachment 3 could have been prepared for the purposes of this hearing also means that a document such as attachment 3 could have been prepared for the information of workers. Now I must say that with our own union agreements we always have a similar document, an award and clause by clause comparison, but we make certain that it is available at every meeting that we go to, together with a copy of the agreement, and copies are available for people to take away, simply because it is part and parcel of the process of ensuring that explanation is given. We don't even rely upon the employers to do that. We do it ourselves so that we think we do it in a better way.

PN821

The mere fact that in these proceedings attachment 3 was prepared between the time the agreement was made on the twenty something of December and the time the application was filed in the Commission, clearly shows that there was the capacity with the employer to have prepared material that could have explained the terms of the agreement, vis a vis the award. And it would have been a different argument if that material had have gone out, and then it was an argument as to whether or not it was accurate or misled, or confused people. But at least it shows that there was the capacity to take a further reasonable step in ensuring that the terms of the agreement were explained to the persons employed. The fact that Mr Arthurson didn't take that opportunity with his employees but tried to take that opportunity with the Commission strengthens our submission that 170LK(7) has certainly not been complied with.

PN822

Because of the non compliance with 170LK(7) then, in our submission, there simply cannot be the making or genuinely making of an agreement, or the approval or genuine approval of an agreement, depending upon which way 170LE is to be read, simply because it is not capable - the requirement of 170LE, paragraph (c):

PN823

That the employer gives all of the persons so employed a reasonable opportunity to decide whether they want to make the agreement or give the approval.

PN824

That cannot be satisfied if there has been non compliance with 170LK(7), because to give a person a reasonable opportunity to decide is not an opportunity in that time sense but is the opportunity in the sense of being able to make an informed decision do you want to vote on this and approve it, or do you want to vote against it and reject it.

PN825

In that sense therefore 170LK(1) has not been complied with, because there simply is not or has not been the making of an agreement with a valid majority of persons employed at the time whose employment will be subject to the agreement. There also is a further issue which touches upon both 170LK(1) and 170LE, and that goes to the fact that Mr Arthurson was clear that numbers have fluctuated from the 79 that he stated in his statutory declaration. So between the date the statutory declaration was made, both before and after that, there has been fluctuation in numbers. It means that there quite clearly could be employees whose employment commenced after the meetings commencing on 6 November, which was the first meeting he held, and the voting meeting. So people could have started their employment without the benefit of having attended, or even had the opportunity to attend, a meeting that was convened. In which case there is real doubt as to whether or not there can be compliance with 170LK(1) and 170LE, where there is a fluctuating employment population.

PN826

The fact also that Mr Arthurson simply does not know where his employees are employed, in terms of their numbers. He doesn't know what the actual changes were, or are likely to be, puts into very serious question whether or not all employees whose employment will be covered by this agreement have had an opportunity to be informed of the terms of the agreement and also had an opportunity to vote, and had the agreement explained to them. I must say in some respects it is the candour of Mr Arthurson's evidence which works against him, but it certainly does work against him.

PN827

There is also another issue which directly impacts upon the operation of section 170LK(2) and 170LK(7) and 170LK(1). There was an attempt to clarify with Mr Arthurson a particular aspect of his statutory declaration, and the attempt to clarify came up both by Mr Thompson and by yourself your Honour, and Mr Arthurson fairly and squarely stood behind the statement in his statutory declaration. That is that in answer to question 5.8 Mr Arthurson answered, on his statutory declaration, noted the times and the dates of the meetings that were convened. He was asked whether the meeting at Grantville was 6 November or 6 December. Mr Thompson tried to assist him by suggesting it was 6 December, and he specifically said it was 6 November. So if your Honour recalls he specifically said - - -

PN828

THE SENIOR DEPUTY PRESIDENT: I recall it very well.

PN829

MR RYAN: Your Honour, 6 November predates the notice given under section 170LK(2).

PN830

THE SENIOR DEPUTY PRESIDENT: Which, of course, is why I asked the question.

PN831

MR RYAN: Yes. And having undertaken the meeting prior to notice being given under section 170LK(2), means that to the extent that those persons who did attend got an explanation of the agreement, and we say that the explanation fails the operation of 170LK(7), but to the extent that they got that explanation that has to be totally and absolutely discounted. It has to be because the operation of section 170LK(7) can only come about after the notice has been given under section 170LK(2). The reason for that time sequence is because of the absolutely mandatory requirements that the notice under 170LK(2) has to contain the requirements of 170LK(4) which gives persons the opportunity, if they are members of an organisation that is entitled to represent their interests, they are entitled to request the organisation to represent the person in meeting and conferring with the employer about the agreement. The fact that the explanation of the terms of the agreement under section 170LK(7) occurred prior to the giving of the notice invalidates totally the explanation given.

PN832

The explanation given without having pre-warned the employees that they had the opportunity to access the provisions of 170LK(4) means that the Commission must, in my submission, discount the meeting held at Grantville on 6 November and to the extent that that meeting was intended to cover the employees at Cowes and the employees at Korumburra, then quite clearly to the extent that any of those persons attended the meeting then all of those three sites are afflicted by the same problem. That is that there has not been compliance with section 170LK(7) at a time after 22 November, which was the date that the notice of intention was formally given.

PN833

THE SENIOR DEPUTY PRESIDENT: Part of attachment 1 is - the last page of attachment 1 is a page which is headed staff information meeting dates, and it gives the time, dates and locations for meetings. All of it is consistent with the statutory declaration, except the Grantville one is in that notice referred to as 6 December. Now I drew the conclusion this morning that Mr Arthurson's recollection was probably an error of the date.

PN834

MR RYAN: Your Honour he was under cross-examination, and I - - -

PN835

THE SENIOR DEPUTY PRESIDENT: Yes, I have got to reconcile that with all the other things. But it was in the context - I am just letting you know, in the context it is perfectly reasonable to look at what he said and say, well, his recollection in the witness box was probably an error, because it is not consistent with the documentary material that he has put up. And that is not uncommon, when people are in the witness box.

PN836

MR RYAN: It is certainly not, but in the testing environment of cross-examination where - it wasn't as if this was a passing or fleeting question which had no repercussions. It was an issue picked up by yourself. It was even an issue where Mr Thompson attempted to get up and answer the question for Mr Arthurson. And even with that Mr Arthurson adamantly said 6 November. And on the basis of him making - - -

PN837

THE SENIOR DEPUTY PRESIDENT: He said 6 November. Whether he adamantly said - I mean I wouldn't put any adjective on it. He said 6 November.

PN838

MR RYAN: He clearly and concisely, and without hesitation, said it is 6 November. That question was asked when he had the statutory declaration before him which had those dates on them.

PN839

THE SENIOR DEPUTY PRESIDENT: Quite right. He gave that answer quickly without any pause to consider whether that could have been correct.

PN840

MR RYAN: Yes. But he gave it also in the context, we say, of the other dates being clearly articulated there, and he made it very clear he attended those meetings.

PN841

THE SENIOR DEPUTY PRESIDENT: Yes you are quite correct. I had already identified that as an item to which I drew his attention.

PN842

MR RYAN: We say that because of that there is certainly, in relation to the Grantville meeting, been non compliance with 170LK(7) because the explanation required under 170LK(7) has simply not been given to those employees at Cowes, Korumburra, or Grantville, because that meeting which took place on 6 November must be discounted for the purposes of assessing whether or not 170LK(7) has been satisfied for those employees.

PN843

Your Honour I will go to the issue of voting that took place with this agreement, and there has certainly been an amount of evidence given by Mr Arthurson on the way the voting procedures took place. In the submission of the association there - the Commission cannot be satisfied that there has been a voting process that is free and untrammelled, because certainly one aspect of it not being free and untrammelled was the presence of Mr Arthurson at each site when voting took place. Notwithstanding Mr Arthurson's waxing lyrical about the good relationship between himself and his employees the difficulty with the employer being present when you exercise your vote is that it is not, in my submission, an approach which is conducive to exercising a totally free and unfettered vote.

PN844

This is especially so in the case of - votes at Traralgon, when Mr Arthurson is at Traralgon. Two employees voted. Mr Arthurson made it very clear that he observed the voting processes. Very easy to identify which two employees vote. I mean there is only two employees who do vote. More importantly Mr Arthurson indicates that he was also present at the count of the vote, and he was observing everything that was done in terms of the count of the vote. There is two ballot papers, or two envelopes, and only two envelopes which will have the signature of Jamie Kendall on the back of them when they are opened and counted. And Mr Arthurson knows which two people voted at the Traralgon meeting. Nothing in my view would be more designed to frustrate a totally genuine, open and honest voting system than having such low numbers vote in circumstances where it is so easy to identify the actual votes of the employees in question.

PN845

THE SENIOR DEPUTY PRESIDENT: The evidence is that the majority of votes were cast by postal vote.

PN846

MR RYAN: Yes.

PN847

THE SENIOR DEPUTY PRESIDENT: So that is the context in which this is said. So carry on.

PN848

MR RYAN: Given that in this case there was a mixture of both postal and attendance voting, and given that the number of attendance votes was quite low, the attendance voting would, in my submission, be designed to cause difficulties and problems with the exercise of a free and genuine vote. This is not an imputation against Mr Arthurson as a person. I am not saying that he would, did, or even contemplated exercising any coercion over any voter. I am making the submission merely as a matter of fact. He was present when votes were cast. He was present when votes were counted, and in circumstances where only two votes came out of Traralgon, which means that there is only two envelopes with Jamie Kendall's signature on them. Only four votes came out of Stratford. So therefore there is only four envelopes with Peter Thornhill's signature on them, it is very easy for the employees to vote in a way where if it is found out who they are their vote will look good in the eyes of the employer. This is not a vote where the vote, once cast, is totally anonymous.

PN849

Mr Arthurson, if he had the capacity to initiate a postal ballot, could have undertaken a postal ballot of all employees, and his own evidence was that the ballot papers were available with the site supervisors to give to people if people asked for them. Two issues are raised by that. The first is it cannot be established at all whether or not the site supervisors did or didn't vote. It cannot be established whether the votes were even cast by employees who were entitled to vote. If the employer wished to undertake a postal vote there are clearly procedures which are well known to the industrial elections unit of the Australian Electoral Commission which can put beyond doubt the efficacy of the vote, in a postal vote. There are clearly consultants who are in the business of conducting elections both for certified agreements and for other industrial matters, who are used to the processes of proper postal voting where the anonymity of the voter can be guaranteed.

PN850

THE SENIOR DEPUTY PRESIDENT: Mr Ryan are you suggesting that there was some irregularity with the voting, or are you simply saying that the presence of Mr Arthurson at the meeting was an undue influence on the voting behaviour of those who were there? In other words you haven't got any evidence to suggest there were irregularities are you?

PN851

MR RYAN: No.

PN852

THE SENIOR DEPUTY PRESIDENT: You are saying, well, look, it is possible that the presence of Mr Arthurson may have exerted an influence on the voting behaviour of those who were there. You are not saying anything stronger than that are you?

PN853

MR RYAN: I am not saying anything stronger than that. But that is sufficient. If there is the possibility, and a very real possibility of influence being exerted, even unintentionally over voters, then that is sufficient to taint the vote.
Equally - - -

PN854

THE SENIOR DEPUTY PRESIDENT: I was just wanting to clarify what you were putting, because the only evidence we have before us is Mr Arthurson's evidence isn't it?

PN855

MR RYAN: Yes. And certainly it is the employer who has not sought to lead any of the evidence from any of the - either site supervisors who had the carriage and conduct of the postal voting process, or of the employer returning officers. And because the only information that the Commission can make a decision on is that information which Mr Arthurson has given, we simply draw certain conclusions from that. The fact that site supervisors had the ballot papers, they had the postal votes. Mr Arthurson made it clear that it was the site supervisors who had that, then there is a very real possibility that a site supervisor could exercise a vote. There is also full time console operators who could have exercised a vote. We are not necessarily talking about people who are so in touch with all of the ins and outs of the processes that some of them wouldn't want to help get the agreement up. It simply can't be discounted. I am not saying it necessarily happened, and I am not trying to impute dishonest or improper conduct, but it simply cannot be discounted. And that is a danger. I must say that we had a vote in Coles Supermarkets in Victoria covering some 25 or 30,000 employees in Victoria, where the union organisers were the returning officers on the basis that they took the ballot papers to the sites. We had locked steel voting containers for people to exercise a secret ballot, where they took the vote, marked it, and put it into a steel container.

PN856

A member of this Commission declared that the process was tainted not because of the conduct of the organisers in conducting the ballot, but because when an organiser went to a particular store they had with them more ballot papers than equated with the total number of employees in the store who were entitled to vote. And simply because of that the Commission determined that it was not possible to say that there was not ballot papers in the ballot box that were cast by a person not entitled to vote. Now we say that is as simple as it has to be here. The information that has been given to you by Mr Arthurson, through his statutory declaration and through his cross-examination evidence, still admits of the possibility that votes have been cast by persons who are not entitled to cast them. And that possibility is admitted by the fact that the site supervisors had access to the postal voting slips. And they were the ones who handed out the postal votes, and given that the majority of the votes are postal votes then the likelihood of something affecting the outcome of the ballot is increased if that possibility is admitted, and it has been.

PN857

THE SENIOR DEPUTY PRESIDENT: Mr Ryan we have been sitting since 1.45 pm. It is now 20 past four. Under section 110 subsection(3) I am going to give you half an hour to complete your submissions, and so that you can organise yourself to do that effectively without any suggestion that you don't have the opportunity to be heard, I am going to take an adjournment of 10 minutes so that you can organise yourself succinctly to deal with anything else that you have to deal with. The Commission will adjourn until 4.30.

<SHORT ADJOURNMENT [4.20 PM]
<RESUMED [4.36 PM]

PN858

MR RYAN: - - - the comparison between Endeavour, Expotech and Jasbe agreements 2004 in the Vehicle Industry Repair Services and Retail Award 2002. So that I am acknowledging that it was prepared not just for this matter, but it was prepared for the other two matters which are before you. It is also not, in tendering it is no way trying to influence what will be the outcome of the preliminary issues as to whether or not we even get into those other two matters. Now I have only got two copies. I will give you the cleanest version. The one that has got a little bit of scribble on it I will make available to Mr Thompson. Do you want to mark that as an exhibit?

EXHIBIT #I2 THE COMPARISON DOCUMENT

PN859

MR RYAN: The first comment that I would say is, I would seek to delete the comment against clause 3.3. It is certainly not something I would pursue in any circumstance.

PN860

THE SENIOR DEPUTY PRESIDENT: So that is in the third column?

PN861

MR RYAN: Yes, on the first page. So we just delete that in its entirety. I am not going to the document. It will be I think, preferable to give it to Mr Thompson so that if he wants he could respond to it. Suffice to say the document has been prepared with three columns. One column, the far left hand column, is the award, the middle column is the agreement, and the third column are the comments. And the comments column effectively become the submissions of the association in relation to the no disadvantage test issues, across a number of these clauses.

PN862

Given that, again, it wasn't prepared specifically for this purpose, there will be some matters which may appear to the Commission as being extraneous matters. I simply put it in as it is, and to the extent that it has got comments which are directly relevant to the issue of the no disadvantage test, we ask the Commission to have regard to that part of the document that goes directly to no disadvantage test issues. And that is the comparison between the award and the agreement.

PN863

THE SENIOR DEPUTY PRESIDENT: Does the document go to anything other than the no disadvantage test?

PN864

MR RYAN: It does, but I am relying upon it at this stage solely in relation to the no disadvantage test issues.

PN865

THE SENIOR DEPUTY PRESIDENT: Thank you.

PN866

MR RYAN: In saying no disadvantage test, it is the comparison between those terms and conditions of the award which would otherwise apply as against the terms and conditions of the agreement which would otherwise apply. What I would then say in addition to that written document is that there is also some particular issues relating to 170LT and 170LU that need to be addressed. To a large extent the arguments, or submissions we would make concerning 170LT(2) are those contained within the document, exhibit I2. We note that should the Commission find that the agreement fails the no disadvantage test there has been no material put to you by the applicant in this matter that 170LT(3) should apply on the basis of public interest. In fact the assertion from the applicant is that it passes the no disadvantage test. If it fails the no disadvantage test then we say that quite clearly 170LT(3) has not been sought to be applied, and should be disregarded.

PN867

We note in relation to 170LT(5) that the issue of genuine approval - no. 170LT(5) does not apply because that only applies to LJ agreements. 170LT(6) does apply and we say that the operation of 170LT(6) definitely brings in the concept of genuine making of the agreement. So any of the earlier parts of the discussion we have had about made or genuinely made, which apply under 170LK(1) are overshadowed in any event because if it is an agreement under 170LK(1), which it is, then whether or not the language of 170LK(1) implies making an agreement rather than genuinely make the agreement, the additional operation of 170LT(6) requires that there must be genuine making of the agreement.

PN868

THE SENIOR DEPUTY PRESIDENT: Indeed.

PN869

MR RYAN: In relation to 170LT(7) to the extent that that applies to an agreement made under section 170LK the specific reference in 170LT(7) is back to 170LK(7), and we say that the submissions we have already made on 170LK(7) are sufficient to deal with the issues of 170LT(7).

PN870

In relation to 170LT(8) there is within exhibit I2 commentary relating to the disputes procedures that are in the agreement, and we acknowledge that there are procedures in the agreement. We note in relation to exhibit I2 that there is a disadvantage suffered in terms of the procedures in the agreement, vis a vis the procedures under the award.

PN871

THE SENIOR DEPUTY PRESIDENT: If I recollect and I haven't immediately turned up that section, although I have now. Ultimately the Commission may be requested to conciliate, and where necessary arbitrate disputes about the application of this agreement. Where is - If the Commission is given arbitral authority where is the disadvantage?

PN872

MR RYAN: The disadvantage is that, in relation to the award procedures an employee has the right to be represented at every stage of the proceedings. Under the agreement an employee doesn't have the right to be represented at the first stage of the proceedings which often is the most important stage of the proceedings. It is dealt with in exhibit I2, in relation to clause 23 of the agreement. But I make no more about that other than to say that that is the point that we would make. We make no submission on - - -

PN873

THE SENIOR DEPUTY PRESIDENT: If I can quiz you on that. I have forgotten the exact case reference. It is commonly known as the Ampol case where, again my recollection is that the Act doesn't set down any requirements as to the exact nature of the procedures. It says:

PN874

The agreement must include procedures for preventing and settling disputes between (a) and (b) about matters arising under the agreement.

PN875

It was the Ampol case that said, well, - if I can translate it loosely, so long as there is a dispute settling procedure about matters arising under the agreement, exactly what was in that didn't necessarily - put it this way. That there needs to be procedures for preventing and settling disputes about matters arising under the agreement. The Act isn't specific about exactly what the requirements are above that.

PN876

MR RYAN: Yes, very much so. Except for two qualifications on that which are not dealt with in things like the Ampol case. And the first is that the procedures must also comply with part XA of the Act. So that you cannot have a procedure which operates in a way to disadvantage an employee by reason of union membership or any of those other prohibited reasons. And to that extent that is where the freedom of association provisions of the Act make it clear that a procedure which attempts to prevent a person from being represented would fail, not under 170LT(8) but they would fail under part XA. So that is a separate issue. And that in a large extent is the argument that we would say that there is certainly the potential for that because of the fact that this procedure does not provide for representational rights during the different processes.

PN877

The other aspect which is not dealt with in cases such as the Ampol case is that even if a procedure meets the strict requirements of the Act, which is meeting the requirements of 170LT(8), it doesn't mean that it can't then be assessed as part and parcel of the no disadvantage test. In other words would a person be disadvantaged by being required to use the procedure in the agreement as against if they had a dispute and they accessed the procedure in the award.

PN878

THE SENIOR DEPUTY PRESIDENT: Indeed, yes. That is a submission I agree with.

PN879

MR RYAN: We don't challenge that this is - we concede that this is a procedure that meets the requirements of 170LT(A), but we say that we have made comments I2 which go to the issue of no disadvantage. We make no submission on 170LT(9) because we concede that nothing has happened which would trigger that. We accept 170LT(10) has also been met. In relation to 170LU, in particular we make the submission that 170LU(3) is relevant. That says:

PN880

Despite section 170LT the Commission must refuse to certify an agreement if it is satisfied that the employer has in connection with negotiating the agreement contravened section 170NB of part XA which deals with freedom of association, or (b) the employer has caused a person or body to engage in connection with negotiations for an agreement in conduct that had the employer engaged in the conduct would be a contravention by the employer of 170NB or part XA or a person or body who has on behalf of the employer so engaged in such conduct or cause another person or body to so engage in such conduct.

PN881

Then it says, in 170LU(4):

PN882

Subsection(3) does not apply if the Commission is satisfied that the contravention or conduct and its effects have been fully remedied.

PN883

Our submission is that in relation to the operation of this agreement the conversion of part timers to casual employment is conduct which is clearly in breach of P XA in that in division 3 of Part XA which deals with conduct by employers section 298(K)(1) says that:

PN884

An employer must not for a prohibited reason or reasons that include a prohibited reason do or threaten to do any of the following - - -

PN885

And (b) is:

PN886

Injure an employee in his or her employment.

PN887

And (c):

PN888

Alter the position of an employee to the employee's prejudice.

PN889

Now that is what cannot be done. The prohibited reasons, which are outlined in 298(L) which opens up with the words:

PN890

Conduct referred to in subsection 298K(1) or (2) is for a prohibited reason if it is carried out because the employee, independent contractor or other persons concerned - - -

PN891

Does several things, and we draw particular attention to paragraph (h) where it is prohibited reasons if the employee is entitled to the benefit of an industrial instrument or an order of an industrial body. In the circumstances of the current case the part time employees employed by Endeavour Petroleum Pty Ltd were entitled as from 25 November, which was the date the Senior Deputy President Acton determined that the RS&R award would be a common rule award. They had an entitlement which was contingent, at that stage, but vested with them as from the commencement of January of this year, benefits of an industrial instrument. Namely the RS & R award. The employer has injured those employees in their employment and altered the position of those employees to their prejudice by unilaterally converting them to casual employment. And it was unilateral. It was not with consent. It was a unilateral alteration of the contract of employment by the employer for the purpose of ensuring that the employee failed to get the benefit of the industrial instrument.

PN892

So where the employee was entitled to the benefit of an industrial instrument the employer has altered the position of the employee to the employee's prejudice and the employer has injured the employee in his or her employment by reason of the employee's entitlement to the benefit of an industrial instrument. This is a
matter - - -

PN893

THE SENIOR DEPUTY PRESIDENT: But that was in consequence of the award becoming a common rule award from the beginning of January was it not?

PN894

MR RYAN: Yes, but with the decision being made in November, the 25th of November has been identified as the time Senior Deputy President Acton determined that the RS&R award would be a common rule. If nothing else there is a benefit that - the employees were entitled to a benefit. The benefit was contingent upon them simply staying in the employment until 1 January, but they were entitled to the benefit of an industrial instrument, the RS&R award, and the employer has quite deliberately and quite openly, in terms of his evidence, made it very clear that he converted them to casual employment because he wasn't going to apply the award conditions for part time employees to them. That is - - -

PN895

THE SENIOR DEPUTY PRESIDENT: That was connection with the common rule award coming into operation.

PN896

MR RYAN: Yes.

PN897

THE SENIOR DEPUTY PRESIDENT: Surely it is not in connection with the operation of this agreement?

PN898

MR RYAN: Yes it is. Because the agreement - - -

PN899

THE SENIOR DEPUTY PRESIDENT: That was not the evidence.

PN900

MR RYAN: No, because he had made it very clear that it is the agreement that will offer the employees permanent continuing employment. Therefore in terms of this agreement, and he also said he explained the agreement in the terms that I have discussed with him in his cross-examination. He explained the terms of the agreement that he would not be employing part timers under the award, that he would employ them under the agreement. Because I asked him:

PN901

Did you explain the terms of the agreement in the same way you have answered my questions?

PN902

And he said:

PN903

Yes.

PN904

So he explained the terms of the agreement to the employees that they were not going to be employed as part timers under the award. He has converted them, and he is certainly true to his word. He converted them from being part timers to casuals. That is conduct which injures them in their employment, because he has taken them from having a status of being permanent employees to being casual employees. Casual employees are able to be terminated at the end of the shift. Casual employees have limited rights. Certainly, depending upon the length of service of the employees, some of them by being converted to casual employment, would have lost all rights under the Act to access termination of employment provisions. He did that, he did it because of the known operation of the common rule award, and it is the agreement that is to replace the common rule award. He did it as part and parcel of the process of getting this agreement made. That is clearly conduct which falls within 170LU(3).

PN905

THE SENIOR DEPUTY PRESIDENT: I don't think the evidence supports that Mr Ryan. The situation as I understand it from the evidence is that - and what you have said is, the thing that you have added is that SDP Acton on 25 November determined that the award should become a common rule award. It is common understanding that that was to happen in relation to common rule awards in Victoria from the beginning of January. And that was the case with this award. So on 25 November SDP Acton, on your submission, declared this a common rule award to apply from the beginning of January.

PN906

Mr Arthurson's evidence was that these people would not fit the definition of part time employees under the award and therefore he transferred them to casual employees. Now this agreement doesn't come into operation until certified by the Commission I presume?

PN907

MR RYAN: Yes.

PN908

THE SENIOR DEPUTY PRESIDENT: So the evidence was that they became casual employees. There wasn't a particular date given but presumably early in January.

PN909

MR RYAN: He said the 3rd.

PN910

THE SENIOR DEPUTY PRESIDENT: You want to say something Mr Thompson?

PN911

MR THOMPSON: Only that on cross-examination your Honour it was clarified that they weren't transferred to be casual employees. Mr Arthurson said that they were paid as casual, but that he fully understood that they were permanent, and that it was a requirement of the award only that they be paid as casuals but retain that permanency.

PN912

THE SENIOR DEPUTY PRESIDENT: Thank you. I simply say that I was dealing in terms that Mr Ryan used, and we can come to that later. But any apparent change occurred at the beginning of January in connection with the operation of the common rule award. Now this agreement would only interact with the common rule award at the point where it is certified, which hasn't happened yet.

PN913

MR RYAN: Yes.

PN914

THE SENIOR DEPUTY PRESIDENT: So I understand your complaint about the, the way you have put it, the unilateral transfer from part time to casual. But surely if there is a complaint that is a complaint for a different place, in terms of award breach or goodness knows what. How does it become a matter in connection with the negotiating of this agreement which then means that I cannot certify it today or on any other day.

PN915

MR RYAN: You can still certify it even if there is a breach, but only under certain circumstances.

PN916

THE SENIOR DEPUTY PRESIDENT: You haven't got to that section yet.

PN917

MR RYAN: That's right. But it is relevant your Honour because - - -

PN918

THE SENIOR DEPUTY PRESIDENT: I understand it is relevant. Clearly I have addressed my mind to it, when the evidence was given, that this is an issue that has clearly got to be dealt with. But my question is surely what you complain about was in connection with the operation of the, and at the time presumably, it was the prospective operation of the common rule award, rather than in connection with negotiating the agreement?

PN919

MR RYAN: Because the language of 170LU(3) says the employer has in connection with negotiating the agreement contravened section 170NB or Part XA the agreement is being negotiated up until the time it is made.

PN920

THE SENIOR DEPUTY PRESIDENT: Yes, and that is happening contemporaneous with all sorts of other issues about the award regulation.

PN921

MR RYAN: Yes. But the employer has, in connection with the - negotiating the agreement. It doesn't say predominantly, solely or any of those expressions, in connection with and - - -

PN922

THE SENIOR DEPUTY PRESIDENT: Yes but it has got to be in connection with negotiating the agreement. The point I am putting to you is, surely it is in connection with the prospective operation of the common rule award, not in connection with negotiating the agreement, because the agreement comes along and says if you are a casual employee we are now going to change your employment status, we are going to make you permanent. We are going to have this hybrid model, as Mr Thompson explained before you arrived this morning. We are going to give you some benefits, that you will no doubt talk about, in being permanent, rather than being casual. So after the event, after the operation of the common rule award comes in that regulates a bunch of things in relation to casual employment, the agreement is going to operate and is going to make some different provisions.

PN923

MR RYAN: For the 71 non part time employees, yes, creating a hybrid agreement. For the eight part time employees who he had he is saying you are a part time employee with permanent employment and I am taking that off you, and I am taking it off you because you are not going to get the benefit of an industrial instrument.

PN924

THE SENIOR DEPUTY PRESIDENT: That was not his evidence.

PN925

MR RYAN: It is his evidence that he would - - -

PN926

THE SENIOR DEPUTY PRESIDENT: That is not what he was saying.

PN927

MR RYAN: He made it very clear he would not hesitate - - -

PN928

THE SENIOR DEPUTY PRESIDENT: It may be how you interpret it, and the spin on it that you want to put to the Commission, but that was not the evidence.

PN929

MR RYAN: The evidence of Mr Arthurson was that he would not have part time employees because he could not and would not comply with the provisions of clause 6(A) that related to giving workers agreed hours each day, days of the week rosters and variations in writing. He has made it very clear he would not employ part timers on those terms and conditions. He did actually have part timers who he employed. Those part timers, and this is if this agreement does not go ahead, those part timers would, as from 3 January, have had the protection of the award.

PN930

THE SENIOR DEPUTY PRESIDENT: Well his evidence was they didn't meet the definition of a part timer under the award, and as the award clause says anyone who is not a full time or part time employee is to be paid as a casual.

PN931

MR RYAN: Exactly. And that is very - - -

PN932

THE SENIOR DEPUTY PRESIDENT: And because they didn't meet the definition of part time in the award, therefore the award provision is they must be paid as casual.

PN933

MR RYAN: Your first citing of the words of clause 6(A) is very accurate. If a person is not employed - Mr Thompson certainly has drawn attention to this by asking - - -

PN934

THE SENIOR DEPUTY PRESIDENT: I had already read it in connection with doing the no disadvantage test.

PN935

MR RYAN: 6(A) paragraph (g):

PN936

An employee who does not meet the definition of a regular full time
employee - - -

PN937

So the first part is:

PN938

A person who does not meet the definition of a regular full time employee.

PN939

And a definition of a full time employee is elsewhere in the award. Then it goes on:

PN940

And who is not a part time employee.

PN941

THE SENIOR DEPUTY PRESIDENT: Yes.

PN942

MR RYAN: These employees were part time employees. They were part time employees. They were not regular part time employees under clause 6(A) paragraph (a). There is a difference in the language. Paragraph (a) of clause 6(A):

PN943

An employer may employ regular part time employees in any classification in this award.

PN944

Paragraph 6(A)(g) uses the term part time employees.

PN945

THE SENIOR DEPUTY PRESIDENT: But do you remember you took Mr Arthurson through the definition. You took him through 6(A)(b) and his evidence was that those that were part time in his business do not have reasonably predictable hours?

PN946

MR RYAN: Yes. Which would place him in breach of the award.

PN947

THE SENIOR DEPUTY PRESIDENT: No. It means that those people don't meet the description of a part time employee under the award.

PN948

MR RYAN: They don't meet the description of a regular part time employee, in paragraph 6(A)(a). They are as - - -

PN949

THE SENIOR DEPUTY PRESIDENT: Well that such person would not be a regular part time employee as described in 6(A)(b).

PN950

MR RYAN: Yes. They are, however, by their contract of employment part time employees. That is a fact of their contract of employment, and Mr Arthurson admitted that he had part time employees. It is just that they were a class of part time employee who didn't comply with the award, if it came in place. Clause 6(A)(g) is of no help to him because it doesn't talk about a person who is not a regular part time employee as defined in (a) and (b).

PN951

THE SENIOR DEPUTY PRESIDENT: I see the distinction you are making, yes.

PN952

MR RYAN: It simply says part time employee.

PN953

THE SENIOR DEPUTY PRESIDENT: Yes, I understand.

PN954

MR RYAN: And Mr Arthurson, in cross-examination - I indicated to him that there was a potential course of action which was compliant with the award, in relation to regular part time employees. He acknowledged that it is a possibility, but one that he wouldn't take simply because of - I think he indicated costs and flexibility issues. However the fact still stands that Mr Arthurson has admitted that he has altered the conditions of part time employees to their prejudice, and done so because they had an entitlement to the benefit of an industrial instrument.

PN955

THE SENIOR DEPUTY PRESIDENT: Because of the prospective operation of the common rule award.

PN956

MR RYAN: Yes, but he did that - - -

PN957

THE SENIOR DEPUTY PRESIDENT: So how is that in connection with negotiating this agreement?

PN958

MR RYAN: Because Mr Arthurson wants his part time employees to vote for this agreement so they get their part time status back. He has altered their condition of employment in the course of the negotiations in order to give them an encouragement to vote for the agreement so they get their part time employment back. If he had have said I - - -

PN959

THE SENIOR DEPUTY PRESIDENT: How do we know that? What is the evidence for that?

PN960

MR RYAN: By converting them to casual employment he has put them in a disadvantageous state. The only way he made it clear to them that they would get their part time status back is under the terms of this agreement. Now I don't say that it is coercion, but it is certainly at the higher level of prohibited conduct, because it is a significant injury to these employees, and significant adverse prejudice to these employees in relation to their terms and conditions of employment.

PN961

THE SENIOR DEPUTY PRESIDENT: So when did the conversion take place, to use your word?

PN962

MR RYAN: He said beginning of January. Which was, as soon as the award came into operation, he converted them.

PN963

THE SENIOR DEPUTY PRESIDENT: When was this agreement made?

PN964

MR RYAN: The agreement was made 15 December.

PN965

THE SENIOR DEPUTY PRESIDENT: So the agreement was made before the conversion took place, to your word?

PN966

MR RYAN: Yes. But he made it clear during the negotiations that he intended not to have part time employees other than under the agreement. Because I asked him:

PN967

Did you explain the terms of the agreement in the same way you have answered my question?

PN968

And he said yes.

PN969

THE SENIOR DEPUTY PRESIDENT: But you don't have part time employees under this agreement. That is not what they are declared to be.

PN970

MR RYAN: Well if they are not casual they are permanent employees.

PN971

THE SENIOR DEPUTY PRESIDENT: Yes.

PN972

MR RYAN: And if they are not permanent - they are not casual employees, they are permanent. They are permanent employees not working 38 hours a week or 152 hours a month.

PN973

THE SENIOR DEPUTY PRESIDENT: Yes.

PN974

MR RYAN: Therefore they fall within the usual industrial definition of a part time employee.

PN975

THE SENIOR DEPUTY PRESIDENT: Being paid casual loadings. It is not the normal definition of a part time employee, I can assure you.

PN976

MR RYAN: No. No. It is referred to earlier as a hybrid. It is worse than a hybrid. It is a total abuse of the process of part time employment, or non casual employment, because it has got the appearances of permanency but with none of the benefits of permanency. And the Commission must have regard to the fact that it was the specific will of parliament to promote regular part time employment. It was a specific concept introduced by the Workplace Relations Act in 1996. The definitions as appearing in this award come from, essentially, the same provisions in the WROLA Bill, the WROLA Act where it was made very clear that part of the process of award simplification was to make certain that awards, where possible or practical, encouraged regular part time employment.

PN977

This hybrid is a bastardisation of casual employment and part time employment by having the appearances and trappings of part time employment, but with none of the benefits. We clearly identify that as part of the - that is a serious part of the no disadvantage test.

PN978

THE SENIOR DEPUTY PRESIDENT: I have got to tell you Mr Ryan, in terms of section 170LU(3) I am not satisfied that the behaviour you complain about, was in connection with negotiating the agreement. In my view, whatever you complain about was in connection with the prospective operation of the common rule award.

PN979

MR RYAN: Yes.

PN980

THE SENIOR DEPUTY PRESIDENT: I am not satisfied that section 170LU(3) applies, on the basis of what you have put.

PN981

MR RYAN: I will simply note what you have decided your Honour. The next matter, and this is the final matter of substance that I go to, is the operation of section 170LU(8). In relation to this the Commission must refuse to certify an agreement if the agreement applies only to part of a single business that is neither of the following:

PN982

A geographically distinct part of a single business or a distinct operational or organisational unit within a single business, and (b) the Commission considers that the agreement defines that part in a way that results in the employment of employees not being the subject to the agreement where it would be reasonable for the employment to be, having regard to the nature of the work performed by the employees whose employment is not subject to the agreement and the organisational and operational relationships between that part and the rest of the single business, and the Commission considers it unfair that the employment of those employees is not subject to the agreement.

PN983

Your Honour from the evidence of Mr Arthurson two distinct groups of persons are not covered by the agreement. That is the administration area and then some employees in the retail petrol outlets. In relation to the administration area I am quite happy to concede that no issue would arise under 170LU(8). Administration normally, and in these sorts of retail operations, is considered to be a distinct operational unit. And normally no unfairness is attached by excluding those persons from such an agreement. However in relation to the retail operations of the business the exclusion is full time supervisors and full time console operators. Certainly in the retail industry it is not uncommon for - - -

PN984

THE SENIOR DEPUTY PRESIDENT: Surely they would be disadvantaged by being covered by this agreement?

PN985

MR RYAN: Just as a part time employee is disadvantaged by being covered by this agreement, simply because a part time employee gets nothing other than pro rata entitlements of a full time employee. And the class of employees covered by the agreement are permanent employees not working full time hours. They are part time employees. They are also disadvantaged.

PN986

THE SENIOR DEPUTY PRESIDENT: But you have just referred to full timers, and to which my response is surely they would be disadvantaged by being covered by this agreement? And it could not therefore be said that it was unfair for them not to be subject to the agreement?

PN987

MR RYAN: 170LU(8) doesn't operate in a total vacuum. It will operate within the context of the Commission exercising all of its powers and obligations under 170LK, LT and LU, in which case if the Commission can identify that a full time employee would be disadvantaged under this agreement, and it would appear to be that obvious, then equally a part time employee employed under this agreement would equally be disadvantaged vis a vis the award. That would raise the issues that the - - -

PN988

THE SENIOR DEPUTY PRESIDENT: I think you are twisting what I have said Mr Ryan.

PN989

MR RYAN: Not twisting, I am making this as a submission rather than trying to take the words of the Commission.

PN990

THE SENIOR DEPUTY PRESIDENT: You know perfectly well what I referred to. My question was in response to your submission about full time supervisors and full time console operators, where the agreement is specifically structured around other than full time employment.

PN991

MR RYAN: Yes.

PN992

THE SENIOR DEPUTY PRESIDENT: So surely an agreement structured around other than full time employment could not be said to be unfair if it didn't apply to - sorry. In the words required in section 170LU(8) it could not be considered unfair that full timers are not subject to an agreement that is specifically designed for other than full time employment?

PN993

MR RYAN: Yes, that is exactly right. And if the agreement - I disagree in some respects as to where the logic of that leads, but if the agreement was an agreement that was specifically designed to cover persons who are not in full time employment, then at least the start of this analogy has substance.

PN994

THE SENIOR DEPUTY PRESIDENT: Well it is, because it is stated to apply for people covered by the following classifications in the award, the casuals are on a different casual rate ..... than the casual console operators.

PN995

MR RYAN: If that is true then those persons who were employed as at 15 December, as part time employees would not have been employed as casual or console operators under the award in any event. They could not have voted on the agreement, and this is one of those issues where Mr Arthurson can't have it both ways. At 15 December on his own statutory declaration he had eight part time employees. If they weren't to be covered by the agreement because they were part time employees at that time they could not vote on the agreement. They couldn't.

PN996

THE SENIOR DEPUTY PRESIDENT: Hang on, I am now confused about the submission you are making. You were making submissions about section 170LU(8), and you were submitting that there were people who were not covered, and the people who were not covered were the - - -

PN997

MR RYAN: Full time supervisors and full time - - -

PN998

THE SENIOR DEPUTY PRESIDENT: There is the administration and you say fine?

PN999

MR RYAN: Yes.

PN1000

THE SENIOR DEPUTY PRESIDENT: That's a separate group.

PN1001

MR RYAN: That is acceptable.

PN1002

THE SENIOR DEPUTY PRESIDENT: Then you say there is the full time supervisors and the full time console operators.

PN1003

MR RYAN: Yes.

PN1004

THE SENIOR DEPUTY PRESIDENT: To which my response was, surely it is not unfair to not have them covered by the agreement. Then you have gone on to talk about the part timers. Is there a submission you want to make about part timers in connection with 170LU(8)?

PN1005

MR RYAN: Yes. In relation to clause 9 of the agreement, clause 9 of the agreement says:

PN1006

The ordinary hours of work for employees will not exceed 38 per week.

PN1007

That happens to be the same definition of a full timer working 38 hours a week. In which case there is no reason why there is a distinction then, between part timers and full timers, or those employees to be covered by the agreement, and those employees to be excluded, who are full time console operators. There simply cannot be - - -

PN1008

THE SENIOR DEPUTY PRESIDENT: But they couldn't be covered by the classifications casual driveway attendants, casual roadhouse attendants, casual console operators could they?

PN1009

MR RYAN: No they couldn't be covered under the classifications of casual. But then equally - - -

PN1010

THE SENIOR DEPUTY PRESIDENT: Because you see that is who the agreement is stated to apply to, in 5.1. So if they are not in those - if they are not otherwise covered under the award, within those classifications, they are not covered by this.

PN1011

MR RYAN: Yes.

PN1012

THE SENIOR DEPUTY PRESIDENT: So in that sense, full timers cannot be covered.

PN1013

MR RYAN: Yes.

PN1014

THE SENIOR DEPUTY PRESIDENT: And I would come to the view that to cover full timers under an agreement that is clearly focussed on non full time work would not be a reasonable proposition. In fact it would be unfair to do that. I am sorry, I haven't put that very well. But in terms of LU(8) it couldn't be said to be unfair because they were not covered, is more correctly the way to put it. So, yes, you are quite right, that under nine, in terms of hours, yes, there could be a full timer there. But the full timer can't come in because of 5.1 on my reading.

PN1015

MR RYAN: Yes. I accept that that is a reading that can be given. I will move then away from 170LU(8) and I will go back to the making of this agreement. The discussion we have just had your Honour, leads me to make the submission that a person who was employed as a part time employee at the time this agreement was made was not, and could not have been an employee otherwise covered under the award within the following classifications of casual driveway attendant, casual roadhouse attendant, and casual console operator if they were, as at the date of the making of the agreement, a part time employee of the employer. In which case there are a group of employees at the time the agreement was made who were not entitled to be covered by the agreement, and were not entitled to participate in the process of making or approving the agreement.

PN1016

Your Honour the very final submission I would make is that, in relation to the no disadvantage test issues which we raise in exhibit I2, I do note that the language of the agreement allows things to happen, whereas Mr Arthurson's evidence was those things do not happen, and it was not intended that those things would happen. The clearest example is that the language of the agreement specifically, and it is not one which is an issue of permission, but which specifically would bind both Mr Arthurson as the employer and the employees, in that every person employed on probation is to be paid level one rates of pay. That is because level one is - employees on probation are covered by level one, and there is no rate of pay for a console operator on probation other than level one.

PN1017

So in terms of the strict operation of the agreement, as it would apply as a legal document, probationary employees, no matter whether they are console operators or not, would be employed as level one. Now Mr Arthurson made it very clear that that is not his intention, and that it would not be applied that way. The difficulty with Mr Arthurson's evidence is that should someone take over his company and simply inherit this agreement, they can apply the agreement as it is written. It is clear, it is plain, it is unambiguous in most areas, and it can apply as it is written. Equally, in relation to the relationship of the agreement to legislation and awards, Mr Arthurson made it very clear he would apply occupational health and safety legislation as it was whenever an issue arose. The difficulty with it is that this agreement, as a federal instrument, makes it very clear that the occupational health and safety provisions that apply are in accordance with the relevant and prevailing legislation of the award, and that is the prevailing material as at the time of certification. That is simply because of the way Mr Arthurson has made it very clear that clause 4 is to be read and to be interpreted.

PN1018

There is certainly some clear authority that federal agreements and federal awards can deal with occupational health and safety issues and as such they oust the operation of state authorities.

PN1019

THE SENIOR DEPUTY PRESIDENT: Federal health and safety is a non allowable matter in federal awards. Unless my recollection of the 89 - - -

PN1020

MR RYAN: No I didn't say currently. There was a case involving the Vehicle Builders Union and I think it was Toyota, where a clause had been incorporated into an award which prescribed occupational health and safety standards. The state authority simply refused to act under the state law because they were effectively ousted by the operation of the federal instrument.

PN1021

THE SENIOR DEPUTY PRESIDENT: Certainly as far as the current award is concerned section 89A(2) does not include health and safety as an allowable matter.

PN1022

MR RYAN: I accept that it can't be in awards at the moment.

PN1023

THE SENIOR DEPUTY PRESIDENT: Yes. And I mean surely the situation is that an agreement does not override the legislation?

PN1024

MR RYAN: Certainly in relation to occupational health and safety it can't override a state law, but it can override any other law.

PN1025

THE SENIOR DEPUTY PRESIDENT: Have you got authority for that?

PN1026

MR RYAN: I beg your pardon?

PN1027

THE SENIOR DEPUTY PRESIDENT: Have you got authority for that?

PN1028

MR RYAN: Section 170LZ(2):

PN1029

Provisions in the certified agreement that deal with the following matters operate subject to the provisions of the state laws that deals with the matter.

PN1030

The first one occupational health and safety. So an agreement can't override health and safety laws. But at 170LZ(1):

PN1031

Subject to this section a certified agreement prevails over terms and conditions of employment specified in the state law, state award or state employment agreement to the extent of any inconsistency.

PN1032

So it can override state laws. We, in particular, had an instance where a law can operate to override aspects of the Minors' Act. This is minors as in children in the State of New South Wales by providing for minors being able to enter into legally binding contracts of employment under the terms of a certified agreement. Whereas under the Minors' Act a parent can step in on behalf of the minor and oppose it, and an agreement can certainly override the operation of a state law.

PN1033

Your Honour what I am drawing attention to predominantly with that, is that there are matters which are allowed or permitted in this agreement, and in applying the no disadvantage test it is not to be applied on the basis of what Mr Arthurson says is currently happening, or what he thinks is good practice. It has to be tested against what the agreement permits the employer to do and what it requires the employer and employee to do. It is the simple language of the agreement that you have to have regard to, not necessarily the good intentions of Mr Arthurson. Certainly the good intentions count for nothing when you get into a dispute over the terms of an agreement. The courts will apply the agreement on their clear and unambiguous words if that is what they are, and there are very strict rules for clarifying ambiguities in an agreement. Your Honour they are the submissions of the association in the matter.

PN1034

THE SENIOR DEPUTY PRESIDENT: Thank you Mr Ryan, and conscious of the fact that I asked a lot of questions, and therefore took account of the fact that part of the air time was mine and part of the answers were mine in, thinking of your half hour submissions. Now Mr Thompson.

PN1035

MR THOMPSON: Very quickly your Honour, thank you. In relation to the issue of a valid majority in the making of the agreement, and the matters raised by Mr Ryan, I won't take much time. I would like to hand up a copy of a decision by Senior Deputy President Watson where he considers most of those issues and put them into what I would say is a very practical context of fairly similar submissions made by the NUW regarding section 170LK and the requirements there. The paragraphs that I would direct you to, not at this point, but without having to go through them, are paragraphs 25 and 28, 32. It is just, I think, a very - in particular paragraphs 37 and 38. It just shows that what is practical for employers does not include explaining the terms of an award, only that the requirement of the Act is to explain the terms and conditions of the agreement, and that that was done in these circumstances.

PN1036

THE SENIOR DEPUTY PRESIDENT: I am sorry, where does it say that?

PN1037

MR THOMPSON: At paragraph 37. It says that:

PN1038

The first three omissions raised in the NUW submissions go to the failure to explain the operation of the award system including the capacity for award variation and the effect of the Act including full implications of the operation of the certification of the agreement.

PN1039

To jump ahead:

PN1040

Such a requirement does not arise from the terms of the Act.

PN1041

To jump ahead again:

PN1042

I do not believe anything arises out of the omission. Whilst the award does not provide for the making of AWAs, the Act does.

PN1043

That was the issue. I won't seek to take you too much further into it because I am very conscious of the time.

PN1044

THE SENIOR DEPUTY PRESIDENT: I am familiar with this decision. I read it at the time. Mr Thompson you raise a good point. I mean I said earlier on I wanted to get this done today. It is 20 to six, and potentially there is a lot for you to respond to, and so I guess it is really your choice whether we continue on, or whether we adjourn.

PN1045

MR THOMPSON: Your Honour I am supposed to be a on a flight at 6.45 to Melbourne, but I feel I can probably conclude the submissions within five to 10 minutes. If that is okay with you, then I am happy to continue.

PN1046

THE SENIOR DEPUTY PRESIDENT: Clearly from the fact that we are still sitting it is okay with me. But as I say it is really your choice. Mr Ryan?

PN1047

MR RYAN: Whilst we are in a slight hiatus here, we do have the other two matters which were also listed today which we haven't got to yet.

PN1048

THE SENIOR DEPUTY PRESIDENT: Clearly they have not been called on, and not going to get called on.

PN1049

MR RYAN: So we take it that you will give some directions on that?

PN1050

THE SENIOR DEPUTY PRESIDENT: Indeed. I was going to come to that, but I think we all knew.

PN1051

MR THOMPSON: In that case, continuing on your Honour. Mr Ryan keeps, in his submissions, referring to the requirement for informed consent. I know that in previous circumstances I have done a quick check in the Act and can't find the terms, "informed consent" within the Act. I don't believe that informed consent is something that is a requirement as stated by Mr Ryan. What is a requirement is that reasonable steps were taken, and I believe in the circumstances, both Mr Arthurson's evidence as well as the other materials and submissions before you show that reasonable steps were taken to, firstly, provide everybody with a notice of intent. Secondly to explain the agreement to them. If I can - - -

PN1052

THE SENIOR DEPUTY PRESIDENT: In relation to notice, that is not a reasonable steps issue.

PN1053

MR THOMPSON: Sorry that must have happened and it did happen, everybody received a letter in the mail, everyone on the payroll who was not full time.

PN1054

THE SENIOR DEPUTY PRESIDENT: Yes, sorry, carry on.

PN1055

MR THOMPSON: If I can quickly explain, and Mr Ryan was saying that it would not have been unreasonable for Mr Arthurson to have driven to every single site and held an individual meeting at every site when employees were rostered to work on. Now whilst the business may sound large, and has what is a fairly large brand, BP as a logo and as a brand, I have been to the head office of Endeavour Petroleum and it is a shop front barely bigger than a few of the boxes over there where the court recorder is, and it does - there is only Mr Arthurson and a full time assistant in the office during the week. To have him out of the office permanently and chasing around employees in that nature was unreasonable in these circumstances, in our submission.

PN1056

There has been some issue raised about the fluctuation in numbers. The fluctuation in numbers were only ordinary and reasonable in the circumstances, and I think that the evidence submitted today only supports that. Mr Ryan has asserted that Mr Arthurson did not understand and could not answer questions about numbers. I think he actually provided very good evidence in that area, and said that he was not aware of the actual numbers of employees at each site on the days in question. I don't think that is unreasonable. He said that:

PN1057

I do not have those numbers with me.

PN1058

We have already touched on, and thank you your Honour for noting that the issue of the date of the meeting on 6 December I think is without doubt clearly an error and a slip of the tongue by the witness, in circumstances that were obviously quite - would make anyone quite flustered. You can see not only from the statutory declaration where the dates are in sequential order, that 6 December would automatically flow from those dates. Also the notice of intent, as you have correctly noted, was dated 22 November 2004, quite a long time after that alleged meeting took place, and it had attached to it the document stated that the meeting was to be held on 6 December 2004. Also the witness and returning officer's statements are also dated not long after that, when the meeting was actually held there.

PN1059

Mr Arthurson's presence at each meeting I don't believe have led to any harm or duress, and I think that the union has already agreed with that point as well. In relation to the documents that were handed up by the union, I too - I had a very brief opportunity to have a flick through that and I am quite happy to note that only a few of the third column has a - a few pages of it have actually any comments in it. But I would say that the majority of those comments relate to the no disadvantage test as it may be applied, or may not be applied, in relation to employees who are permanent part time as defined by the award. It is dealing with the cashing out of annual leave and sick leave provisions and loadings and penalties et cetera, for people who would be part time under the award. Evidence has been put forward both in the statutory declaration and from the box today that there are no employees who meet the award definition of permanent part time, and that everybody would otherwise have been employed according to the casual rates of pay under the award.

PN1060

In addition to that, the no disadvantage test does not require a comparison of wages that might be paid to employees had they been employed in some other way. It requires a direct comparison between the terms and conditions of the award, and the terms and conditions that would apply under - sorry - the terms and conditions of the agreement and the terms and conditions that would apply under the award. The agreement only applies to employees employed as casual employees under the award, and therefore to consider the terms and conditions of the award as they apply to the part timers, in my view, would be without jurisdiction in this matter.

PN1061

THE SENIOR DEPUTY PRESIDENT: What do you say to the distinction which Mr Ryan drew between regular part time employee, as referred to in 6(A), regular part time employees, in (a) (b) and (c) deals with regular part time employees. But then when you get down to (g), as Mr Ryan correctly highlights, that refers to an employee who does not meet the definition of a regular full time employee, and who is not a part time employee, will be paid as a casual employee?

PN1062

MR THOMPSON: I give it very little weight. What I say your Honour is that that is just one of a plethora of drafting anomalies within this award, and that there is no definition of part time employee within this award. There is only a definition of permanent part time employee, and that the reference within clause 6(A)(g) must therefore be a reference to permanent part time employees as defined in the preceding subsections. Irrespective - - -

PN1063

THE SENIOR DEPUTY PRESIDENT: Is that the way it works? Under contract of employment it says:

PN1064

Except as hereafter provided employment shall be by the week. An employee not specifically engaged as a casual employee shall be deemed to be employed by the week.

PN1065

MR THOMPSON: An employee employed by the week is not necessarily a part time employee either.

PN1066

THE SENIOR DEPUTY PRESIDENT: It then goes on to specify who a full time employee is. Then it goes through and gets to regular part time employees, which I note was a relatively recent variation to the award.

PN1067

MR THOMPSON: With respect your Honour I don't know that that assists anybody a great deal, in that knowing that somebody is weekly does not necessarily make them part time. But the definition of permanent part time, I guess, is of the greatest assistance, and we know from - - -

PN1068

THE SENIOR DEPUTY PRESIDENT: You mean regular part time?

PN1069

MR THOMPSON: Regular, sorry. Regular part time and we know from evidence provided already that these employees don't meet the definitions or the requirements under the award for regular part time. I would like to be able to have a look at what constitutes part time employment under this award, but it is not, to my knowledge, defined anywhere.

PN1070

THE SENIOR DEPUTY PRESIDENT: It is interesting isn't it, 6(A) generally refers to regular part time employees but there are a couple of points where it refers only to part time employees, and subsection(k) is another one of those.

PN1071

No part time employee may be employed on more than five days per week other than at the request in writing of the employee concerned.

PN1072

MR THOMPSON: Again, your Honour, I submit that this award has consistently - at least has one consistency. And that is it consistent drafting errors. This is typical of those types of drafting errors.

PN1073

THE SENIOR DEPUTY PRESIDENT: Once again (j) refers to part time employees.

PN1074

Subject to the provisions contained herein all other provisions of the award relevant to full time employees shall apply to part time employees.

PN1075

That comes after a section that is - after a sentence that is referred to, regular part time basis. So you say there is no definition of part time in the award, other than regular part time?

PN1076

MR THOMPSON: Not that I have identified your Honour.

PN1077

THE SENIOR DEPUTY PRESIDENT: Sorry. Carry on.

PN1078

MR THOMPSON: So my submission was that in relation to I2, as provided by the union, that all of the submissions regarding the comparisons to part time ..... entitlements under the award should be disregarded. I haven't had an opportunity to comment on other issues in there, but if the Commission has concerns regarding the no disadvantage test then I might make some more general comments about those in just a moment.

PN1079

In relation to section 170LU(3) of the Act and the submissions made by Mr Ryan there - - -

PN1080

THE SENIOR DEPUTY PRESIDENT: I have already said that I was not satisfied that the behaviour complained of was in connection with negotiating the agreement.

PN1081

MR THOMPSON: Thank you your Honour. And in relation to section 170LU(8) I at least agree with, I think, the position of the Commission so far as put. That is that this agreement was not intended to apply to full time employees. It applies across an entire business in relation to the employees covered. It doesn't apply to a particular part of the business, in that it excludes any type of employee that meets the definitions of its coverage. And in that way I do not believe it would not be unfair, and for that reason I believe it would not be unfair to exclude the full time employees from the terms of the agreement that applies to - is not intended to apply to full timers.

PN1082

Your Honour in summing up, I would like to state again that this is a business that has run for some nine or ten years, I think relatively well, and I am sure Mr Arthurson would say very well. It has operated in a circumstance where there has been no lengthy award. They have not been bound by any award at all, and they have operated very well within the terms of the Victorian State Sector Minimum. Through no fault of their own they have been cast into a situation where a new award which has, from accounts of many Commissioners, is incredibly difficult to understand, has been passed onto the business, and they have had to make a decision about what they were going to do. In making the decision about what they would do in relation to this new award, they have borne in mind the principle object of the Act under section 3(c) which is to enable employers and employees to chose to make the most appropriate form of agreement for their particular circumstances, whether or not that form is provided for by this Act. They have decided to use the Act to make a non union agreement and they have, to their best endeavours, in my opinion, followed the requirements of section 170LK, and the other requirements of the Act, in order to make an agreement which they believe passes the no disadvantage test. And which they believe provides an advantage to all of their employees. They seek to have the agreement certified in other that they can maintain a profitable business, and maintain all of the employment positions that are available currently under this business.

PN1083

In relation to the issue of the no disadvantage test, your Honour, I believe and I submit that the agreement passes the no disadvantage test. Mr Ryan has stated that it does not take into account the changes to the award as it applies. I state that section 170XA of the Act provides that no future changes to the award need be considered. The no disadvantage test is a stationary object that applies on the day of certification, not on an ongoing basis. The relevant award is defined within section 170X of Act as in relation to a person to whom an agreement will apply means an award that immediately before the initial day of the agreement is binding on the person's employer. It does not require the no disadvantage test to take into consideration future awards and future changes to awards.

PN1084

THE SENIOR DEPUTY PRESIDENT: The initial day is defined to be the day on which it is certified?

PN1085

MR THOMPSON: Yes it is. Other issues regarding the no disadvantage test. If the Commission has further concerns because of the - or any concerns because of the materials provided to the Commission by the union, that I would reserve the right to respond, as I have not had sufficient time to adequately peruse all 75 pages, 70 odd pages, 66 pages I believe. However, the union has also stated that nothing has been tendered which would trigger any usage of section 170LT(3) of the Act either. That is that the agreement should be certified if it does fail the no disadvantage test. At this point in time I feel that the agreement passes the no disadvantage test. However I would also state that even if the Commission is of the opinion that the agreement does not pass the no disadvantage test on the first flush that there is nothing that would stop me from making further submissions regarding any particular concerns that the Commission might have that would lead it to believe that the agreement is contrary to the public interest.

PN1086

In my opinion I would also submit to the Commission that section 170LA of the Act says that it would require the Commission once being satisfied that it has a valid application that the Commission will facilitate the making of an agreement. Sorry, the certification of the agreement. Thereby, I think, that even if detailed submissions regarding this agreement not being contrary to the public interest, having not been put in relation to concerns that I would not have already known of because they have not been raised at this point in time, it would be certainly reasonable of the Commission to give me such an opportunity prior to determining that the agreement could not be certified.

PN1087

Finally, if having been given such an opportunity, the Commission were to determine that there was anything either within the requirements of the no disadvantage test, or the other requirements under witness section 170LU and 170LT, that would require that the Commission could not certify the agreement then we also would seek to be given an opportunity to provide undertakings. In that regard, should the Commission determine that the agreement is contrary to the public interest, and that undertakings should be provided, we would be in the Commission's hands to discuss those, and prefer them at the relevant time.

PN1088

THE SENIOR DEPUTY PRESIDENT: Just on two points that Mr Ryan raised, starting from the most recent. The issue about probationary employees as console operators potentially being employed at level one, I presume from what you have said that there would be no problem giving an undertaking that probationary console operators will be employed at level three?

PN1089

MR THOMPSON: No, I think there would no concern with that whatsoever, and I think that - almost in transcript, from the testimony provided today, I think, that Mr Arthurson has already given that form of undertaking in a form that may even be acceptable to the Commission, considering that his evidence under oath, that he would not be following the award in that way. Sorry, the agreement, in that way.

PN1090

THE SENIOR DEPUTY PRESIDENT: I presume also that there would be no problem with an undertaking that if an employee in relation to the dispute resolution procedure wanted to be represented at the very first stage that there would be no problem in giving an undertaking that that also would be available?

PN1091

MR THOMPSON: I think that is completely fair and reasonable, and although that wasn't given on oath today, I am sure that instructions would be forthcoming and resolved. Just on that last point made by Mr Ryan regarding the way in which the agreement would apply in relation to occupational health and safety acts and things like that, I don't believe that argument stands up whatsoever. I think the wording of the agreement at clause 4 is quite clear and unambiguous. That the relevant legislation, and the legislation that is specified, will apply as it prevails from time to time. I think the intention is to show that we will maintain the prevailing legislation, not the legislation as it exists today.

PN1092

THE SENIOR DEPUTY PRESIDENT: How do you respond to Mr Ryan's point about part time employees could not be in a position to vote?

PN1093

MR THOMPSON: The part time employees that he refers to are part time employees that were employed under the state sector minimum pursuant to employment agreements which specifically state, and unfortunately I don't have a copy for the Commission. But they specifically state that rosters and hours will be agreed from time to time and will be varied, can be varied at any time, taking into account sick leave, the needs of the business and everything else. I mean these employees had, according to the terms of their employment, no certainty of rosters or hours. And by that definition alone therefore that they cannot be deemed to be part time under the award, regardless - - -

PN1094

THE SENIOR DEPUTY PRESIDENT: But at the time of the vote the common rule award was not operating?

PN1095

MR THOMPSON: No, that's correct. But at the time of the vote the employees had been informed that pursuant to the terms of the award that they would be paid as casuals, and therefore they would be covered by the agreement, and therefore they were entitled to vote. Obviously the agreement was not drafted without close examination of the award, and a thorough understanding of the fact that employees, as employed by Endeavour at that time, and having taken into account the terms and conditions of their engagement, that they would not meet the definition of a part timer under the award and therefore they would be eligible to vote on the agreement

PN1096

THE SENIOR DEPUTY PRESIDENT: Mr Thompson I note the time, and you said that you had a flight to catch. I wonder if on that point we might conclude today's proceedings, and you said that you were - you referred to the state sector minimum in relation to part time and that you didn't have it with you, and you could provide it to the Commission, in view of the time I wonder whether - what I have in mind is to adjourn to give you the opportunity to provide that and any further explanation you wish to in relation to that. Sorry, to give you the opportunity to provide that.

PN1097

MR THOMPSON: That, just to confirm, was examples of letters of engagement for part time employees under the state sector minimum?

PN1098

THE SENIOR DEPUTY PRESIDENT: Essentially what I am saying is that on this point about whether the part timers were able to vote you have said that there is further information as in the state sector minimum, that you could make available which you don't have with you. I am giving you an opportunity to make that available and I also have in mind that clearly I am going to review all of the material from today and most particular I2 which I haven't had an opportunity to peruse on the bench. So if you are able to provide the state sector minimum promptly I will consider that along with I2.

PN1099

MR THOMPSON: Thank you your Honour. I will do that as soon as possible, most likely Friday.

PN1100

THE SENIOR DEPUTY PRESIDENT: And I will give you your chance to try and catch your plane. Mr Ryan anything further that we should cover?

PN1101

MR RYAN: Only that I would expect that any material that is forwarded to the Commission will be forwarded to me.

PN1102

THE SENIOR DEPUTY PRESIDENT: Yes I am making that assumption, and we should make that explicit. In relation to the other matters that were listed for today, my associate will be in contact. Ladies and gentlemen thank you very much for you assistance and patience today. On that basis the Commission will adjourn.

<ADJOURNED INDEFINITELY [6.05 PM]

LIST OF WITNESSES, EXHIBITS AND MFIs

JAMES PATRICK ARTHURSON, SWORN PN159
CROSS-EXAMINATION BY MR RYAN PN159
EXHIBIT #I1 - PHOTOCOPY OF MELWAYS ROAD MAP PN299
RE-EXAMINATION BY MR THOMPSON PN697
FURTHER CROSS-EXAMINATION BY MR RYAN PN736
THE WITNESS WITHDREW PN740
EXHIBIT #I2 THE COMPARISON DOCUMENT PN858