C2005/2336, Transcript of Proceedings [2005] AIRCTrans 636 (15 March 2005)

1800 534 258

TRANSCRIPT OF PROCEEDINGS

---

Workplace Relations Act 1996 10770

SENIOR DEPUTY PRESIDENT HARRISON

C2005/2336

s.170LW - application for settlement of dispute (certification of agreement)

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
and
Caltex Refineries (Qld) Ltd
(C2005/2336)
Caltex Refineries (Qld) Ltd P&PC Maintenance Certified Agreement 2003

BRISBANE

1.09PM FRIDAY, 04 MARCH 2005

THE FOLLOWING PROCEEDINGS WERE CONDUCTED VIA VIDEO CONFERENCE AND RECORDED IN SYDNEY

PN1

THE SENIOR DEPUTY PRESIDENT: Are there any changes to the appearances in the section 127 application?

PN2

MR H DOWNES: Thank you, your Honour, yes there are. I am assisted by
MS V FAVARO and not Ms O'Reilly today but otherwise the appearances are as before.

PN3

THE SENIOR DEPUTY PRESIDENT: Yes. Thank you, Mr Downes. May I have appearances in the section 170LW matter?

PN4

MR DOWNES: MS FAVARO and I would seek leave to appear in the 170LW.

PN5

THE SENIOR DEPUTY PRESIDENT: Yes. Thank you.

PN6

MR DOWNES: If there is objection I will speak to that.

PN7

THE SENIOR DEPUTY PRESIDENT: Yes.

PN8

MS P ROGERS: I appear on behalf of the CEPU and with me I have
MR J YOUNG and just to ensure we don't disappoint Mr Downes we will be objecting to his appearance.

PN9

THE SENIOR DEPUTY PRESIDENT: All right. Mr Downes, well, the section 170LW is your application. Ms Rogers, I might just note that the section 127 was Caltex's. Mr Downes, I take it that the objection is to your appearing in the section 170LW I have previously ruled in relation to the section 127. Do you
Mr Downes want - well, I don't think I will hear you just at the moment because I think I need to understand a little more about the 170LW and I will be able to better understand then why Mr Downes on the one hand might say he should be heard and why you, Ms Rogers, should say I should decline leave.

PN10

I know little about that other than that which is contained in the notification although I suspect it is related to the section 127 matter. So before I rule on the question of leave to counsel to appear in the 170LW could I perhaps have an indication from each of you as to how you propose we should deal with the two matters today. Your application 127 was first in time, Mr Downes, so I might start with you.

PN11

MR DOWNES: Thank you, your Honour. We would propose that the most practicable way of proceeding today would be in fact to deal with the 170LW first. It would just seem to us to make common sense that if the issue which has been a substance of the grievance is capable of being resolved and we have come to the Commission today with some suggestions which we think might led to a resolution of that grievance, then the 127 will become obsolete. So practically we would think that the 127LW should be dealt with first and in the absence of that resolving the matter then we can revert into the 127 at which point in time,
your Honour, you would have had the benefit of all of the background, all of the issues and it will make the hearing of the 127 fairly short and sharp.

PN12

THE SENIOR DEPUTY PRESIDENT: I should have indicated, Mr Downes, I am happy for you to remain seated whilst making any submissions, this hearing being by way of a video conference link.

PN13

MR DOWNES: Thank you.

PN14

THE SENIOR DEPUTY PRESIDENT: Ms Rogers?

PN15

MS ROGERS: Thank you, your Honour. Your Honour, our position would be slightly different from that of Freehills. We believe that the section 127 is no longer relevant and as such it should either be withdrawn or dismissed. But having said that, given that Mr Downes has suggested that we deal with the dispute first, it may be that our submission in relation to that may become irrelevant and obsolete.

PN16

THE SENIOR DEPUTY PRESIDENT: All right. I will put that to one side and if you require me to make some ruling on that, Ms Rogers, remind me to do so. I think then what we will do is, firstly hear from you, Ms Rogers, about the section 170LW. I must say that my inclination at the moment is to allow Mr Downes to reply so I would be inclined to grant him leave to appear for those purposes just to see where the matter has got to and what the parties are proposing. If you then press to make me rule for the general purposes of the 170LW about leave to appear we can revisit that. Ms Rogers?

PN17

MS ROGERS: Thank you, your Honour. If I could just deal with that point that you raised first without going into fulsome submissions Mr Downes made his position, I thought, abundantly clear last week, which was that if we were trying to resolve the dispute that he didn't believe he had a role and also he believed he was appearing because the appropriate people from Caltex were not available. I understand Ms Jen Munt who was the appropriate person, who was not available last week, is available this week and as such I think some of the grounds that
Mr Downes put forward last week no longer exist, so I am actually a bit surprised that he is here attempting to appear in the 170LW.

PN18

Having said that, if I can move on to the matter in relation to the dispute. The dispute is in relation to 24 hour coverage. Our members are required to be on call to provide for emergencies et cetera. The on call arrangements are part of an annualised salary package which is included in the certified agreement that applies to our people and just for the record the name of the agreement is The Caltex Refineries (Qld) Limited P & PC Maintenance Certified Agreement 2003.

PN19

In the last 12 months the staffing for the technicians has reduced from 11 to eight. This has been an ongoing issue for our members because as the numbers who are employed reduce so does the number of times our people are required to be on call increase. It has been raised with the company on a number of occasions and in fact I have an email that was sent from Ms Vasanthi Weber in February this year but that refers back to a meeting in September last year where the union had raised their concerns in relation to the staffing levels and the resulting changes to the call back roster.

PN20

The enterprise agreement does provide a number of ways of dealing with these concerns and if I can just refer the Commission to the relevant provisions in the agreement, the annualised wages. Your Honour, I am assuming you have a copy of the agreement?

PN21

THE SENIOR DEPUTY PRESIDENT: Yes, I have.

PN22

MS ROGERS: The annualised wages provisions are included in attachment 1 to the agreement and if we go to the bottom of the first page of attachment 1 the agreement says:

PN23

Management will monitor the actual working of overtime and the sharing arrangements with the group and take action to address problems as they arise.

PN24

Your Honour, we would say that that is where the first problem is. We have been, as I said, raising with the company for quite some time and to date management have not taken action to address the problems as they have arisen.
Your Honour, if we can go to - my document calls it page number 9 but it is the third page in attachment 1, and we go to the top of that page. The whole of that paragraph we say is relevant. It says that the call back roster - - -

PN25

MR DOWNES: Your Honour, if I may - - -

PN26

THE SENIOR DEPUTY PRESIDENT: Mr Downes?

PN27

MR DOWNES: I have obtained a certified copy from the Commission and I do not have in front of me a copy obtained from a wage line, so just that I can follow Ms Rogers, she has handed to me a document which contains the annualised wages and I will follow her arguments from this document. Thank you very much.

PN28

MS ROGERS: Sorry about that.

PN29

THE SENIOR DEPUTY PRESIDENT: I think on my document, Ms Rogers is now taking me to the paragraph immediately before section 2, annualised wage details.

PN30

MR DOWNES: Thank you.

PN31

THE SENIOR DEPUTY PRESIDENT: Yes, Ms Rogers?

PN32

MS ROGERS: Thank you. If we go to that paragraph, it says:

PN33

The call back roster is planned six months in advance for week to week call and up to eight years in advance for significant public holidays.

PN34

The call back roster is planned in advance however the roster that is currently in place has a number of vacant spots on that roster because one of the employees left Caltex employment just prior to the end of 2004. And I think that is what has created the issue that brought the section 127 here before you last week, is that the company has put pressure on the remaining employees to provide coverage for the vacant spots on that roster and our members are having some significant difficulties with that both in relation to fatigue but more particularly in relation to quality of life and being able to exercise their family responsibilities.

PN35

Your Honour, the paragraph goes on to say that if employee numbers are reduced due to secondments, progression or long term illness, the PP & C team and the leadership will solve coverage of the vacant lots jointly. We would say that that particular wording is an inclusive list rather than exclusive list because if we read on it says the principle being that any changes to manning should be planned and discussed to examine impact on workload. Your Honour, we say that this is the second problem that there has been with the company. There has been a reduction in staff now down to eight employees and there does not seem to have been any real planning and discussion to examine the impacts on workload on the remaining employees.

PN36

The final sentence of the paragraph we say is also relevant and that is the wording that says:

PN37

Where numbers fall below nine, additional compensation will be provided.

PN38

Your Honour, that is the final part of the problem that we have. The staffing has fallen from nine to eight and there has been no additional compensation provided to our members.

PN39

Your Honour, our members have been in the past prepared to work the additional on call but they have got to the point where the company, they believe, is not taking the matter seriously enough. We have raised it with the company through our delegates and also through our organiser but to date we have not managed to reach any mutually satisfactory outcome. But what our members are saying to us is, well we have a roster that is planned six months in advance, there are some vacant spots on that roster, but it is not our responsibility to ensure the coverage is maintained.

PN40

The agreement is quite clear it is a mutual responsibility between the company and the employees and that if the employees are required to provide additional coverage that there will be additional compensation. Given that there is no additional compensation, what we say, is that there is no obligation on our members to perform this additional work. However, in good faith, before the Commission last week we said that our people were prepared to provide this additional coverage to allow us the opportunity to resolve the matter.

PN41

As I understand it there were some discussions between the employees, our delegates, I think our organiser was involved at some stage, and the company earlier in the week which led to the union writing to the company on the afternoon of Wednesday, 2 March and we responded to a proposal that had been put to our members by the company. Our response was that we were prepared to accept that the roster would be amended to provide that a suitably qualified and experienced contractor would be engaged to supplement the call back roster and they would go on call one week in five, that in additional to that one of existing employees would also do an additional on call one week in five, that when that person was doing that additional work they would be paid a call back allowance and that for any time work worked that the employee, the technician be granted time off in lieu of overtime but that any time off in lieu of overtime should be granted at the accrued rate.

PN42

So that if a person worked two hours and they should have been paid two hours pay at time and a half that they would then be entitled to three hours time off in lieu. Similarly if they worked two hours at double time then they would be entitled to four hours time off in lieu. Your Honour, this position was sent back to the company on Wednesday afternoon, as I stated. We asked for some response from the company by close of business Wednesday. The company spoke to us late Wednesday afternoon asking that we grant an extension of time to 10.30 the following morning, which we did. Unfortunately we were not able to reach agreement and so the union, as we had foreshadowed I believe last week, and also as we had foreshadowed in our email to the company, notified the dispute with the Commission.

PN43

Your Honour, we are aware that as it is only a section 170LW notification that the Commission has limited powers in relation to forcing outcomes on the parties but we seek the assistance of the Commission at this time as we believe it would be useful in helping us to progress the negotiations since we appear to have reached a stale mate at this stage. Your Honour, I am not sure that there is anything I can usefully add unless there is points that you need clarified.

PN44

THE SENIOR DEPUTY PRESIDENT: No. I suppose, I don't know, I may or I may not be at a disadvantage not having the respective positions put but I think as a general description I had the details of what the union was proposing. I don't know what the company is putting and it might be useful for me to have the documentation. but at least let me hear what the company has to say and then we can discuss how the matter proceeds both by way of discussion in the nature of conciliation and in the event that that does not resolve the matter, the Commission exercising the power that the parties have agreed it would have in its dispute settlement procedure to - I don't know what the words are but there is an ability to refer the matter to the Commission if not earlier resolved but I cannot immediately see what the parties have agreed will be the role then undertaken by the Commission. We can come back to that. Mr Downes? Yes, Ms Rogers?

PN45

MS ROGERS: Sorry, your Honour. If I could just before Mr Downes makes his submissions, if I could maybe say to you that the offer that we were responding to from the company was almost identical to the position put by the union. As I understand it the only difference is that the company was seeking time off in lieu on a time for time basis.

PN46

THE SENIOR DEPUTY PRESIDENT: Yes.

PN47

MS ROGERS: So that if an employee worked for two hours overtime, regardless of what they would have been paid, they would receive two hours off in lieu.

PN48

THE SENIOR DEPUTY PRESIDENT: So as a practical example if you are called back on a Sunday morning for two hours you would say probably payment for four, I don't know what your EBA and award table is, I assume it says double time. You say four hours time off in lieu and they are saying two. Is that were you are apart?

PN49

MS ROGERS: That is correct.

PN50

THE SENIOR DEPUTY PRESIDENT: I understand. Mr Downes?

PN51

MR DOWNES: Thank you, your Honour. Just as a point of clarification my client's understanding of the union's proposal was that a contractor be appointed to do the one week in five and that all employees would be paid the allowance and time off in lieu on an accrued basis, so the remaining eight technicians would be paid that. I just want to get clarity whether that is their position or simply the employee who would now be filling the ninth P & PC tech's role.

PN52

MS ROGERS: Your Honour, perhaps I could just read point two out of our email and I apologise for not providing this to your office. Point two out of the email that we sent to the company says:

PN53

That the call back allowance be paid to the Caltex P & PC technician who is required to be on call on that fifth week.

PN54

I am not quite sure how that creates confusion but I am prepared to accept that it may have done.

PN55

THE SENIOR DEPUTY PRESIDENT: Tell me this again so I understand in a practical way how it would work. Let's say Mr Smith was the employee who left Caltex employment late last year. Is it known who now will cover the places in the roster that Mr Smith's name appears? How does that work?

PN56

MS ROGERS: As I understand it, your Honour, there are currently vacancies, there are vacant spots. What we agreed to last week was that our members would somehow fill in that spot and that may mean that some person went on call for one day, two days.

PN57

THE SENIOR DEPUTY PRESIDENT: I see. On your understand it was though a matter that would be agreed between the members or would the company have some input into who would be the person on call to cover the vacant spots?

PN58

MS ROGERS: I think for the last week, your Honour, my understanding was that it was discussed among the members and then the company was notified but I think my understanding of what we have put back to the company is that there would be a person on call for one week.

PN59

THE SENIOR DEPUTY PRESIDENT: Yes.

PN60

MS ROGERS: And that it would only be one person not numbers of different people but that one person would then receive the on call allowance. That is my clear understanding - - -

PN61

THE SENIOR DEPUTY PRESIDENT: I understand.

PN62

MS ROGERS: And that, I think, it is the organiser's understanding.

PN63

THE SENIOR DEPUTY PRESIDENT: All right. Mr Downes, does that answer your question?

PN64

MR DOWNES: It does, your Honour, but perhaps just by way of a background perhaps this confusion as to the interpretation of the agreement, if I may, your Honour, take you to section 2 of attachment 1. There is a table which unscrambles the annualised salary egg as it were and takes the sum into its various components and your Honour will notice from that, that there is a call back allowance and those figures in the middle column, I understand, represent dollars, so 2652. And that component on the annualised salary is a calculation based on two P & PC employees on call back roster each week assuming that there are nine P & PC employees. That is how the remuneration for committing to the call back roster has been calculated.

PN65

So the point of departure according to Caltex is that employees are already paid and have already committed to a call back roster calculated on the premise of there being nine P & PC employees. It was anticipated that there would be a fluctuation and that, your Honour, is evident from note one at the bottom of that table. My instructions are that there has in fact been a fluctuation and for a significant period of the life of the agreement there were fact 11 employees sharing the roster so in fact there were more employees giving less weeks on call than the agreement has anticipated. That number did diminish and from 1 January this year the number dropped from nine to eight.

PN66

So just to address the issue which Ms Rogers has raised in relation to this being a long outstanding issue, we say that there should not have been any issue in relation to this matter until 1 January 2005. We also say that there is a logical consistency between that calculation and the clause to which Ms Rogers took you and we say, your Honour, that - - -

PN67

THE SENIOR DEPUTY PRESIDENT: It would have been an easy drafting job to have made that express Mr Downes.

PN68

MR DOWNES: I think that the one thing in which Ms Rogers and I would probably agree is that a lot can be said for the drafting of the agreement. It is fairly short and sharp.

PN69

THE SENIOR DEPUTY PRESIDENT: There is nothing wrong with short and sharp but it certainly indicates that the triggering is the reduction below nine when additional compensation will be provided and the words do not suggest anything about an agreement of the party as to what methodology will be used. So even though I understand you, you were argue there is a consistency about looking to the arithmetic or methodology used for the purposes of striking the annualised wage and one looks to section 2, that is why, in that context, I would say well it would have been an easy drafting addition, you know my point. Yes, continue.

PN70

MR DOWNES: Thank you. Your Honour, the consistency which I wish to point out is that the remedy for the eventuality which was anticipation which was that numbers may drop below nine has been anticipated. That does not include a withdraw from the call back roster. The remedy is expressly stated and that is additional compensation. Where the drafting falls short is obvious and that is that it has not provided a formula, it has made no indication of what that additional compensation will be. But in terms of what the remedy is, if the numbers drop below nine, additional compensation will be provided.

PN71

So to respond to the first point which Ms Rogers made, we disagree that the obligation to abide the commitment to comply with the call back roster ceases. We say that it does not cease and that commitment which is contained in an earlier paragraph of section one and that is, your Honour, the paragraph under the heading equitable sharing of additional hours. There is a commitment there in the middle of that paragraph which reads:

PN72

An employee is committed to doing their fair share of hours and will not reasonably refuse to work additional hours.

PN73

I can only think that it would have been as easy at the point to say that if the numbers drop below nine the roster will be worked as if there are nine but that is not what has been drafted. The clause expressly provides that when numbers fall below nine additional compensation will be provided. So there are two obligations. One on the P & PC techs and that is for them to continue to abide the roster and to ensure that there is coverage for call backs and then there is an obligation on the company, and the obligation on the company is to provide additional compensation.

PN74

Now what we say, your Honour, is that the additional compensation can at best only mean that where you are working more rosters than you are already paid for under the calculation which I took your Honour too at the start of my submissions which is two P & PC techs on call back based on a calculation of there being nine, so if a tech is working more rosters than that formula provides for, then there must be additional compensation. The maths on this, your Honour, is that nine techs providing that coverage translates to them performing coverage 11 and a half times in a 12 month cycle and this where we say there is a logic to this matter. There are six monthly rosters are prepared and the current six monthly roster ends next Thursday, 17 March.

PN75

Ms Rogers is quite correct that ownership of the roster, as it were, has been handed to the employees. They decide amongst themselves who is on call for which weeks and I understand that they chop and change that to suit their personally requirements. The only concern which the company has is that there is somebody on call 24/7 and there is no quarrel with that system. What the company now has to do in order to meet its obligation is that it must pay the additional compensation. Now, my instructions are that, none of the eight employees, well as a matter of rostering fact work more than 11 and a half weeks to the end of this current cycle.

PN76

THE SENIOR DEPUTY PRESIDENT: No. I don't understand that. None of the eight employees will work more than 11 and a half weeks of what?

PN77

MR DOWNES: Of call back. None of them will have worked on the call back roster for more than 11 and a half weeks during the 12 months cycle which will end on Thursday, 17 March.

PN78

THE SENIOR DEPUTY PRESIDENT: The previous 12 months cycle, yes, I understand.

PN79

MR DOWNES: So, the trigger for last week's 127 application which was that there would not be an employee on the call back roster last week and the reason why the 127 is still alive and if necessary will need to be pressed is that there will not be an employee on the call back roster starting next Thursday so for the last week of the 12 month cycle. The company's position is that, if one considers the rosters, these employees will not work more than 11 and a half weeks on the call back roster over this 12 month cycle.

PN80

Looking to address however this specific concern that we understand the employees to have and, your Honour, I will interrupt myself at this, just to say that the company has had some difficulty in this regard because what it is that the employees are after has been something of a moving feast, it has gone from being a quality of life issue to an additional compensation issue and backwards and forwards. When the grievance has been raised at the level of a quality of life issue proposals and response to that have been put and those have not been accepted. We say that it cannot under any circumstances be a quality of life issue because the number of weeks on the roster that the employees are being required to work is no more than was anticipated under the agreement.

PN81

The company really acknowledges that it does have an obligation that where the numbers fall below nine, additional compensation will be paid and that compensation will be paid. If it were to become necessary for any P & PC tech to work more call back roster weeks than the employee has already committed to performed which is 11 and a half in the 12 month cycle that employee will be paid and, your Honour, further, there is in fact a precedent for this eventuality.

PN82

My instructions are that approximately 18 months ago the number did for some period of time drop from nine to eight and the additional compensation which it was agreed, or which was offered and accepted and which was agreed at that point in time, was that for those P & PC techs who worked additional, and your Honour, when I use the term additional I mean more than at the rate of 11 and a half weeks per year, well those P & PC techs they were paid what was called an additional call back roster allowance of $250 a week.

PN83

THE SENIOR DEPUTY PRESIDENT: For those weeks they were rostered and worked call back?

PN84

MR DOWNES: In excess of doing so at the rate of 11 and a half in the year.

PN85

THE SENIOR DEPUTY PRESIDENT: Yes.

PN86

MR DOWNES: That it where, that interpretation level - - -

PN87

THE SENIOR DEPUTY PRESIDENT: And that agreement, I don't wish at this stage to go into the detail of the date of it and whether it is on all fours with what is happening now or not, whether the EBA applied, I don't wish to go into all of that but was that agreement the subject of any hearing in the Commission, is it something that the Commission had some involvement in or did the parties reach some accommodation themselves to cover those circumstances that apply?

PN88

MR DOWNES: Your Honour, I was not involved in that matter but my instructions are that that was an arrangement made entirely on site.

PN89

THE SENIOR DEPUTY PRESIDENT: Yes.

PN90

MR DOWNES: If I may be so bold as to say, Mr Young seems to be confirming that but Ms Rogers can disagree with that but those are my instructions.

PN91

THE SENIOR DEPUTY PRESIDENT: All right.

PN92

MR DOWNES: So that was the arrangement some approximately 18 months ago.

PN93

THE SENIOR DEPUTY PRESIDENT: Yes.

PN94

MR DOWNES: So from the company's side, your Honour, what we seek is this, that the employees commit to their 11 and a half weeks on call back roster in a 12 monthly cycle. It is now becoming somewhat critical for the company because the current roster expires in two weeks times or just under two weeks time on the 17th and the usual practice is that that the employees will provide the company with the following six months roster some three or four weeks before the expiry of the current roster.

PN95

This issue has resulted in the next six months roster not being provided as yet or that is what has been communicated to management so the company is anxious to get the next six months roster to see that there is coverage provided.

PN96

THE SENIOR DEPUTY PRESIDENT: Yes. Tell me this. The union, I understand, on the 2 March this week put a proposal to you, I understand it was a written proposal. Are the submissions you now made considered to be the company's reply or have the company put something in writing by way of response and presumably a counter proposal or does it intend to?

PN97

MR DOWNES: Your Honour, I have a proposal that I will put shortly.

PN98

THE SENIOR DEPUTY PRESIDENT: All right. Good.

PN99

MR DOWNES: But I thought I would give the interpretational background so that the position is made clear and where the company is coming from is made clear because the agreement still has 12 months to run and it is not beyond the realms of possibility that the number of P & PC techs may again drop below nine notwithstanding the company's publicly stated desire to recruit and it is in the middle of recruiting additional P & PC techs at the moment. But having said all that, that is an issue at an interpretational level where the parties differ and it does highlight the difference between the parties that the union and its members are saying that the P & PC techs should perform call back once every five and a half weeks, the company is saying that the agreement provides that they will provide call back once every four and a half weeks, and that is where I suspect the difference has arisen.

PN100

But, then turning, your Honour, to the proposal itself. Sorry, before I do that I want to also just highlight that in relation to, and just hopefully to dispose of the quality of life issue, my instructions are that the amount of overtime worked by these employees has diminished quite significantly. When there were 10 P & PC techs they were working 92 per cent of the anticipated and annualised overtime hours, the employees are paid for 320 overtime hours and on average they were working 92 per cent of their overtime bank. That has now dropped to 55 per cent notwithstanding the reduction in techs from 10 to eight. So there has been a concerted effort by the company and the technicians to reduce the need for overtime and that overtime obviously includes call backs.

PN101

Your Honour, then turning to the proposal itself. The company is making the following proposal and it is not very far from the union's proposal and the proposal is this. That any P & PC tech who is required to work a call back week in excess of 11 and a half in a 12 month cycle will be paid an allowance for that week of $250. Well, your Honour, it is not exactly 250, there is a formula. It is $252 I think. It is the annualised rate which was reflected in the table that I referred you to $2652 divided by 11.5 which is the frequency with which call back rosters are worked under our interpretation of the agreement and that gives you the dollar value. It is the same figure which was agreed to some 18 months ago. So that figure of approximately $250 and in addition that employee will be given the option of type off or payment on an accrued basis, in other words, calculated on a penalty rates basis, for any call backs during that additional week.

PN102

THE SENIOR DEPUTY PRESIDENT: Yes.

PN103

MR DOWNES: Your Honour, if that proposal is accepted by the employees and we receive a commitment to the continuous call back roster that it will be fully staffed then as we see it the underlying grievance falls away as does the need for the 127 and let me say, your Honour, that this needs to be seen against the background of the company's commitment to recruit, to increase the numbers. Now this has been communicated to the employees. That process is hoped to result in at least a recruitment in the very near future which will result in a P & PC tech coming onboard but it is expected that that tech will take approximately three months to become sufficiently confident and familiar with the site.

PN104

THE SENIOR DEPUTY PRESIDENT: Yes.

PN105

MR DOWNES: I am instructed that in fact there are two techs that it is hoped will accept offers of employment in the very near future.

PN106

THE SENIOR DEPUTY PRESIDENT: Yes. Now, all of this thus far has been transcribed. I am just wondering now, Ms Rogers, if there is something you wish to place on transcript but otherwise whether this isn't a convenient time to go off transcript to talk about a number of things. I suppose, the first thing is, any clarification you, Ms Rogers, need of the proposal put by Mr Downes, or indeed any that I might need. The manner in which you can take some instructions then from your members about it, reply to it and then decide where we go from there. So anything you want to say about those matters, Ms Rogers, that needs to be transcribed and then we will go off transcript.

PN107

MS ROGERS: Thank you, your Honour. But the first issue I would like to raise is to go back to the apparent precedent about 18 months ago when employee numbers dropped from nine to eight. My instructions are that our members received an additional call back allowance but they were also paid for the overtime that they worked and the appropriate penalty rate on the basis that they had exceeded the bank. So I am not sure we are comparing apples with apples. I would dispute Mr Downes' submissions that there was no issue before 1 January 2005.

PN108

I accept that the issue of additional compensation wasn't triggered until 1 January 2005 however we would say that you need to read the agreement in its entirety and so there was an issue before January 2005 and the company have managed to completely ignore their obligations in that regard. I am concerned about
Mr Downes' willingness to dispose of quality of life issues. They are issued for our members and I know from speaking to the delegate they are the most important issues that have been put to me.

PN109

And my final concern is Mr Downes keeps referred to 11 and a half weeks being on call in a 12 month cycle and I actually can't find that anywhere in the agreement so I guess I am looking for some maybe assistance and maybe we can do this off the record but I am concerned that Mr Downes with the point coming into the agreement, that that may or may not be there and if it is not there I would like it clarified on the record that it is not actually written into the agreement.

PN110

THE SENIOR DEPUTY PRESIDENT: All right. Well maybe we will just do that before we go into conference. Mr Downes, that calculation and that reference to the 11 and a half weeks worked call back in a 12 months cycle is that something that is in the agreement or reflected in the methodology or arithmetic used in the agreement?

PN111

MR DOWNES: Your Honour, I suggest that it flows from the arithmetic arising out of the agreement.

PN112

THE SENIOR DEPUTY PRESIDENT: Yes. Where is that?

PN113

MR DOWNES: There are the 12 technicians are paid on the basis that - or the annualised salary of $2652 was calculated on the basis that there are nine of them.

PN114

THE SENIOR DEPUTY PRESIDENT: Well, can I shortcut you, you say, that by using that methodology you can draw some inferences from it. That is where you the leveller. Ms Rogers, I think that is the answer to your question.

PN115

MR DOWNES: Yes.

PN116

MS ROGERS: Thank you, your Honour.

PN117

THE SENIOR DEPUTY PRESIDENT: Let's go off transcript.

<SHORT ADJOURNMENT [1.57PM]
<RESUMED [2.20PM]

PN118

THE SENIOR DEPUTY PRESIDENT: Mr Downes?

PN119

MR DOWNES: Thank you, your Honour. We have reached the point where the parties have reached an interim agreement in relation to the 170LW and I will do my best to spell that out, both parties views. What we have from the CDPU is an undertaking that coverage will be provided for the call back roster for the week commencing Thursday, 10 March 2005. The company has from its side provided an undertaking that whilst it does not presently believe that any of the P & PC techs are entitled to an additional payment for work done to date on the call back roster, if it becomes apparent that there is such an entitlement, that will be paid retrospectively.

PN120

THE SENIOR DEPUTY PRESIDENT: Do you wish to say something about the instructions you may take in relation to the 127?

PN121

MR DOWNES: I will, your Honour, that given the developments under the 170LW today I will take an instructions and I will take onboard the views of your Honour that given the change in circumstances it is probably unlikely that the section 127 will proceed and I will inform your Honour as well as Ms Rogers by noon on Monday as to whether or not that is going to proceed in any way shape or form.

PN122

THE SENIOR DEPUTY PRESIDENT: Ms Rogers?

PN123

MS ROGERS: Thank you, your Honour. I am not sure that there is anything that I can usefully add other than to say thank you for your time and hopefully there will be a speedy resolution next week.

PN124

THE SENIOR DEPUTY PRESIDENT: Yes. Good. The Commission now adjourns.

<ADJOURNED INDEFINITELY [2.22PM]