C2004/6284, Transcript of Proceedings [2005] AIRCTrans 981 (22 April 2005)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 11247-1

COMMISSIONER WHELAN

C2004/6284

APPLICATION BY CSL LIMITED
s.113 - Application to vary an Award
(C2004/6284)

MELBOURNE

10.39AM, WEDNESDAY, 13 APRIL 2005

Continued from 12/4/2005

Reserved for Decision

PN964

THE COMMISSIONER: Right Mr Gardner, we'll start with you this morning

PN965

MR GARDNER: CSL's case with respect to both issues is that errors were made in the drafting of the relevant awards which were not intended and which have serious and real consequences. As a result, variations were made to the awards which were not consistent with the award-making principles of the Commission and in respect of the award simplification process, the variations to the '96 award were not consistent with the award simplification principles. I will deal with each issue in turn, if I may.

PN966

I will deal with on-call first. The background is important here, that is the practice with respect to the on-call amounts. At the time of the award simplification discussions CSL had a practice in some area where it averaged the on-call allowance paid to certain individuals. That wasn't the universal practice but it was a practice in at least one area. Importantly, in deriving the requisite calculation the evidence is clear that it was based on two rates, that is the weekday lower rate, which under the award was 64 cents, and the higher weekend/public holiday rate of $1.58. The evidence of Ms Jenkins is clear with respect to the reliance and the practice of having these two rates and indeed today CSL applies two separate rates and that is why we're here today, because the union wrote to CSL in those terms in the latter half of last year. Whilst there was a practice in some areas of applying an average calculation, that average was founded on two separate rates. They were important inputs into the final calculation. I make that point because the union's case seems to be in part that the weekday rate was obsolete at the relevant time and that that obsolescence provides the foundation for the consent which they say was reached between the parties in respect of the on-call allowance. For the reasons I've identified, plainly that rate was not obsolete.

PN967

Further, as a sub-point, it's worth noting that the 1997 enterprise agreement which was operative from 13 October '97 at clause 13 provided the increases on the award allowances but at clause 14 preserves the award as at 31 December 1996. So we have a situation where the enterprise agreement operative in the last quarter of '97 provides for the preservation of the 31 December '96 award allowances and we move into the first quarter of '98, when it seems the award simplification discussions commence. But that's just to say that the parties in the EBA just prior to the award simplification discussions preserved reference to those allowances.

PN968

THE COMMISSIONER: That form of words was not uncommon at the time, as I recall a number of agreements, but that wouldn't have continued beyond the life of the '97 agreement, did it?

PN969

MR GARDNER: In fact it did and there was discussion about what happened to the carpenters' allowance and those other allowances done under the award. Express reference was made to the deletion of those - - -

PN970

THE COMMISSIONER: In the 2001?

PN971

MR GARDNER: That's right, the 2001 agreement - no reference to the on-call position, quite importantly. Now I will turn to the question of consent, because the unions say no, the parties had intended this. Mr Harris says that the issue was decided in a smaller group and that was fed into the larger group. In cross-examination it became apparent that the discussions that Mr Harris was involved in or aware of was limited to the averaging and it seems around the practice which was adopted at the time, but his evidence doesn't go so far as to say that there was an acceptance that there be a move to the higher rate whenever on-call occurs. It falls well short of that. It may have been that Mr Harris is confused about discussions that occurred generally about the averaging and the move towards averaging being applied beyond his immediate group. It may have been that if there were discussions about that he was involved in them because he was someone who was subject to this averaging process. It's difficult to reach a conclusion there, but what we can say with some certainty is that Mr Harris's evidence does not reveal an agreement about a move to the actual higher rate.

PN972

If we are to accept the union's line it would be that CSL took on board discussions about an average rate and then took a quantum leap and agreed to the higher rate, dispensing with the weekday rate which was actually operative at the time. To put that quantum leap in context the rate for weekday - the shift was more than double of that rate, 64 cents to $1.58.

PN973

THE COMMISSIONER: That was the award but the actual rate was something different, wasn't it?

PN974

MR GARDNER: Yes, it was. The actual rate was something different but the EBA - - -

PN975

THE COMMISSIONER: Because of the application of the EBA.

PN976

MR GARDNER: Yes, that's right. Similarly with Mr Ward, he believes that the issue was discussed in the smaller groups. He understands that because it seems he was told about it and because of the documentation. Indeed, we would say that Mr Ward's evidence springs essentially from the documentation which he's seen and he concludes from that that the issue must have been agreed. He doesn't really know what happened in the smaller groups. In the larger groups he was somewhat hazy about that in that at one point he stated that the issue was resolved in the large group; later he seems to want to depart from that. The overall sense with respect to Mr Ward is that there's just a real lack of clarity about actually what went on, what actually was agreed, what actually was discussed. There is no detail about that. That is to be contrasted with the evidence from CSL.

PN977

I should also make a point that both Mr Ward and Mr Harris say that the agreement which was struck happened early on in the process. It's not clear when, but they say earlier on in the discussions. We make that point that that is not borne out by the March, April and May drafts of the awards. Those earlier drafts still contain the two separate rates.

PN978

We turn to the company events. Both Mr Whitley and Mr Brierley, who were in attendance at all of the meetings, certainly Mr Whitley was in attendance at both larger and smaller group meetings. I should say that there seems to be a contest about what these smaller groups were. Mr Whitley doesn't say that separate groups were commissioned to go and deal with an issue and come back to the larger group. He says that the smaller group was simply - at the back end of meetings where participants weren't interested in a particular issue, would leave. He says he was present at all of the relevant discussions relating to the awards simplification process. He maintains there was no - - -

PN979

THE COMMISSIONER: I think they're talking about two different things, aren't they? I thought Mr Harris was talking about a process where delegates and employees got together without management to discuss issues and Mr Whitely was talking about the fact that the way that they organised the agenda for the group meetings was that if you weren't interested in an issue you could leave early. I thought they were talking about completely different things.

PN980

MR GARDNER: They do seem to have meant two different things. Mr Whitley wouldn't agree that there were separate feeder type meetings but be that as it may- - -

PN981

THE COMMISSIONER: He wasn't involved in them. As I understand it, it was a series of delegates and employees.

PN982

MR GARDNER: Quite rightly, but he was plainly intimately processed with the - with the process as was Mr Brierley. They were two key people from CSL although they both had to report to a Mr Milroy. They were both involved, it seems, in the drafting of the documentation with Brierley adopting what he independently of, rightly described, as a secretarial type role. Whitley maintains there was no discussions about the allowance. Brierley says that he doesn't recall any discussions about the allowance. Both say clearly that the change is of a significant nature. That it being of such significance, it wouldn't have happened. Effectively they say it wouldn't happen as likely as what the unions seem to assert.

PN983

The union want us to believe that the larger group just gave it a big tick without any real meaningful discussion, without any negotiation. Whitley and Brierley say that just could not be the case because of the significance of the change. The fact that it would have serious cost implications and accordingly they would have had to have gone off and got costings. They would have had to have discussions with Milroy. When Mr Whitley was pressed about costings, there was a question put to him about costings for other entitlements and he said he most certainly did in respect to overtime, because that was the other change. That was a change which might have had serious cost implications. So of course costings were done in respect of that issue.

PN984

It seemed from the cross-examination yesterday that the unions are saying or the CPSU is saying that because it was a significant change that it therefore should have been picked up. That doesn't necessarily follow. If the attention was elsewhere in the discussions and the resultant documentation - it is not beyond the realms of possibility. in fact it is quite possible if not likely that in fact an issue like that was overlooked as a drafting error and that cross checking and checking in that particular clause wasn't picked up. The other changes which are referred to by the unions which were obsolete, were generally obsolete, they fell out. There was no need for a carpenter tool allowance, the plumbers' licence allowance and nurses' uniform. They fell by the wayside on the evidence of both our witnesses. They were not contentious. There was no need for any discussion. There was no need for any documentation. It wasn't as if there was an evolution in respect of those issues.

PN985

The other issues to which Mr Ward is at pains to refer as being ones that were the subject of negotiations, all are the subject of minutes. Commissioner, if I could just hand up what we say for convenience is a summary of the minutes and their location in the relevant folder which deal with each of those issues. I could take you to each one of them but that would take up time. The review that we've done - - -

PN986

THE COMMISSIONER: Do you want this marked?

PN987

MR GARDNER: I'm happy to have it marked, yes.

EXHIBIT #CSL10 SUMMARY OF MINUTES

PN988

MR GARDNER: Here were issues - and there's debate about whether these were negotiated or not. Quite frankly we see that as being neither here nor there. The fact is these were the issues which took considerable time in discussions as reflected in the relevant minutes. The unions say that because these items were negotiated it follows that it is possible the on-call allowance was negotiated. That's one of the main contentions. Of course it doesn't follow simply because there were negotiations over a range of issues if in fact that is what they were. It doesn't follow that necessarily the on-call allowance was negotiated.

PN989

Secondly, perhaps apart from the overtime issue, Commissioner, these issues are in a different category to the on-call allowance in that the first issue, the personal leave issue, there was debate about how the clause ought to be expressed having regard to the concern about whether it be expressed in hours or days and then the competency based pay increments and the long service leave. The long service first, there was debate about whether it was allowable and that was left to the Commission and the competency based pay increments. There was discussion and debate about how that best be reflected having regard to the award simplification making principles.

PN990

So they stand in quite a different category. It might be said that the overtime is in a similar category in that that was an increase in the treatment of overtime but the evidence is clear on what happened there. There are costings done and it didn't hurt the company. It was agreed, but not without discussions, not without it being dealt with and not without it being .....

PN991

THE COMMISSIONER: Surely the personal leave would have been an issue depending on how you expressed it. It may have impacted on people's entitlements, because if it's expressed in hours rather than days and you're accruing at the rate of eight hours a day but you're working 10 and a half, so when you have a sick day you lose 10 and a half hours, not eight, that makes a difference.

PN992

MR GARDNER: Yes, it does make a difference, there's no question about that but I think that we have to see it in context. This is about the award's application process, it's about expressing clauses in a way which is easily understood and it's about doing so in circumstances where the hours and days are variously expressed in the relevant award. It's really about how to get the expression - ultimately the expression can impact upon the ..... of course that's the case, and no doubt the respective issues the parties' adopted went to that but ultimately it was about the way in which it ought to be expressed. In any event the point is, there were discussions about it and it was mooted.

PN993

THE COMMISSIONER: Why was there an issue about allowability of long service leave, given its expressed action - provision in the Act? I mean the Act - it's mostly - includes long service leave so why would there be an issue about whether it was an allowable matter?

PN994

MR GARDNER: I haven't dug into that but that just seems apparent from the minutes that the party would have said we'll leave it to the Commission to decide. So in saying that I'm relying on the minutes, so whether they were right or wrong about that I don't know. Finally, the unions say that because there ..... lots of resources then necessarily it could have been picked up, that the oversight should have been picked up. The answer to that is fairly clear from ..... Whiteman really. They dealt with the issue, they dealt with it alone. Yes, there were materials circulated, other people may have seen it, but no one was doing the work that they were doing and it's simply not the case to say that because there were lots of resources it follows that it must have been picked up.

PN995

If one reviews the actual drafting, one can see how the error may have occurred and if I might take you, Commissioner, to tab 10 of the CSL documents relating to the item 51 review, tab 10 is the infamous letter to the Commission with the matrix. If we look at the way in which the allowances are expressed in the current award column, see that the MIG top welding allowance and the on-call allowance is grouped together with the heading On-Call and the two separate expressions Saturday, Sunday, Public Holiday with the other one underneath it in the same typeface. The version of the award that I have, where it has that table actually, separates each allowance with a line underneath it, whereas these are grouped in one, two, three, four, five lumps.

PN996

THE COMMISSIONER: But it's not even correctly expressed. It's any week day other than a public holiday not any week other than a public holiday.

PN997

MR GARDNER: The point being there is errors - this is supposed to be the current award. This is supposed to be the way in which the current award sits.

PN998

THE COMMISSIONER: Well, it's not clearly, is it? So it couldn't just have been a cut and paste error.

PN999

MR GARDNER: Whenever it's occurred the drafter has relied upon that version in producing the final draft.

PN1000

THE COMMISSIONER: That version continues to then appear in each of the documents after that.

PN1001

MR GARDNER: The point being that not even the expression of the current award is correct.

PN1002

THE COMMISSIONER: In that - in the column - in that document?

PN1003

MR GARDNER: Yes, that's right.

PN1004

THE COMMISSIONER: Yes, that's why I'm saying I find it hard to see it as being a simply a cut and paste error because that's not simply a cut and paste of the expression in the current award because the expression in the current award said any week day other than a public holiday, and not any week other than a public holiday.

PN1005

MR GARDNER: Whether cut or paste or typed, the fact is that we have - the basis upon which the new clause is drafted, is wrong.

PN1006

THE COMMISSIONER: I accept that the documentation, insofar as it is intended to be a representation of the current award, is not correct. It never was. Not in the first one of these matrices and not in the last one.

PN1007

MR GARDNER: Yes, and then what appears to have happened in the desire to simplify these allowances, whereas the current award adopts the table with the amounts and separately provides a definition of the allowance, the new award simply provides - it seeks to combine those things in the desire for simplification, for rationalisation, brings those two things together, that is, the definition of
on-call and the rate but the 64 cents is missing as it of course was missing from the current award depicted in that matrix.

PN1008

THE COMMISSIONER: Yes, but the matrix does and it continues to refer to have:

PN1009

Saturday, Sunday or public holiday, any week other than a public holiday -

PN1010

The wording of the new clause makes no references to anything of that nature. It simply says:

PN1011

Paid at the rate of $1.58 to employees required to be on-call at a time when they would normally be off duty.

PN1012

MR GARDNER: That's true. That's obviously the case but there's - - -

PN1013

THE COMMISSIONER: All I'm saying is this. I don't think that trying to explain how it happened is probably very fruitful because to the extent that it's purely speculation because we've had no evidence as to how this occurred but you've got a column on one side and a column on the other and one assumes that you can compare one with the other and that that was the process of checking which occurred. It may well be that, and I understand this is your argument, that the checking was very poorly executed and if that's the argument that's the argument, but to try and speculate as to how it happened I don't think really assists.

PN1014

MR GARDNER: It goes a little bit further than that, Commissioner, if you can bear with me. I just wanted to highlight the fact that when the current award was depicted in this matrix, there's no reference to the 64 cents. It's just not there when it obviously ought to be because there was no agreement in the '96 award that that fall by the wayside. The draftsman presumably have picked that up and whacked in simply the $1.58. When we say there's no evidence about that, Commissioner, apart from Mr Brierley who did this work and he said that it wasn't his intention for this to occur, so there is evidence from the person who did this particularly work.

PN1015

Commissioner, if I can now then turn to the item 51 process and, if you like, what some of the implications are which flow from what has occurred from this unintended outcome. The award simplification process was governed by the principles enunciated in the Commission's award simplification decision and because of the error which has occurred, the principles simply weren't applied. In saying that, we make no criticism of the Commission whatsoever because this is something which was not brought to the attention of the Commission because of the inadvertent nature of what had occurred. The fact that the principles weren't complied with, provides a compelling consideration, we say, for the proposition to be restored.

PN1016

Had the Commission been properly apprised of the situation, had that been possible, then the change should not have occurred, at least without a proper consideration of principles and if I could, Commissioner, take you to those principles now. Commissioner, you will be well familiar with this decision, the award simplification decision.

PN1017

THE COMMISSIONER: Far too familiar.

PN1018

MR GARDNER: Far too familiar, I thought you might say that. The principles on this copy commence at page 28. Principle 2 I am referring to, that's the one which talks about variations so the awards act as a safety net and are fair in wages and conditions of employment. (1) is:

PN1019

There has been no consideration of the safety net position in respect of this allowance which - - -

PN1020

Once again has more than doubled through this inadvertence. As a sub-point of that, principle 2 talks about encouraging the making of agreements between employers and employees. That's precisely the policy objective under the legislation. Bargaining is encouraged by virtue of ensuring that awards remain as a safety net. (3) once again:

PN1021

A simplified award is one which provides the minimum working arrangements.

PN1022

So reference there to minimum arrangements is again highlighted. Then there is principle 7 which makes it clear that:

PN1023

Award simplification does not involve a general review of the level of award entitlements.

PN1024

Of course the proper course where there used to be reviews and that's not to say that there weren't reviews in parallel with award simplification process, but they were brought under a 113 application in the normal course. That was the proper approach and if disallowance - if we were to see a variation to the week day allowance it should've been the subject of a 113 review so that the merit position could be properly assessed. Then there is principle 8 and midway through that, Commissioner:

PN1025

Claims for new allowances should be the subject of a separate application unless the principle of the payment of an allowance...(reads)...justified on the evidence.

PN1026

Now even, Commissioner, if there was consent it would still be incumbent on the parties to justify why the rate ought to move in the way it did and it's incumbent on the Commission no less to make that inquiry. Of course, here the Commission wasn't in the position to be able to do that.

PN1027

I apprehend, Commissioner, that the unions will say, well, have a look at principle 5. Principle 5 enables awards to be reviewed so that the award to be reviewed does not contain provisions that are obsolete or need updating and that's the second reason why the unions would have you believe that in fact the week day allowance was obsolete, but of course it's a nonsense to say it was obsolete. It wasn't obsolete in the sense contemplated by the principles. There was still a week day rate and even after the variation, there is a week day rate. That's a defacto way of seeking a variation if their argument is to be accepted and it flies in the face of the other principles which demand a merit review based on safety net considerations.

PN1028

The requirement to have a merit review takes us to the Commission's arbitral principles. Commissioner, I've got the relevant part of the April 1998 safety net review decision and I will hand that up. That's the relevant one in the sense, it's the one that was applicable at the time of the 1951 process and if I could just refer to the pertinent principles here, which once again have not been given due consideration with respect to this change, the first is principle 10 which of course applies today and that's the one which speaks of:

PN1029

A variation above or below the safety net being referred to the President as a special case.

PN1030

That of course did not happen. If we turn to principle 1 because there it deals with what the safety net is:

PN1031

The existing wages and conditions in relevant awards of the Commission constitute the safety net which protects employees who may be unable to reach an enterprise workplace agreement.

PN1032

It goes on to talk about the award providing the safety net for benchmarking purposes for the no disadvantage test. It goes on to say that:

PN1033

As a result of the award simplification process awards will, where necessary, be varied so that they again ...(reads)... conditions of employment -

PN1034

And there are those two other items which I've mentioned. Once again, the emphasis here is round the maintenance of a safety net and no consideration was given to that .....

PN1035

THE COMMISSIONER: Does that mean it's clearly not solely confined to the existing wages and conditions in the award in question?

PN1036

THE COMMISSIONER: That is clear.

PN1037

MR GARDNER: Yes. But in terms of identifying the safety net, the award is a safety net. The award is a starting point in terms of identifying their safety net, and the objective is for the award - - -

PN1038

THE COMMISSIONER: Or the awards, relevant awards, plural, of the Commission, are the relevant starting point.

PN1039

MR GARDNER: Yes.

PN1040

THE COMMISSIONER: Not necessarily the particular award itself, and that has been clear in relation to decisions - - -

PN1041

MR GARDNER: Because it may have been a particular award doesn't mean to say - - -

PN1042

THE COMMISSIONER: It may be a particular award doesn't meet the safety net because it's below it.

PN1043

MR GARDNER: That's right.

PN1044

THE COMMISSIONER: That's what I'm saying, yes.

PN1045

MR GARDNER: That's right. But, equally, the - - -

PN1046

THE COMMISSIONER: Although it's not been suggested in - it certainly hasn't been suggested in this case as I understand it. But at the time, although one may argue differently now, that at the time this award did not meet the safety net.

PN1047

MR GARDNER: Yes. Can I make a point about that because you're seizing upon something which you raised earlier on in this proceeding?

PN1048

THE COMMISSIONER: Mm.

PN1049

MR GARDNER: I just want to make sure that we make this plain. We have no difficulty with the 64 cents and the $1.58, that being suitably adjusted for safety net increases, we could have a difficulty with that. That needs to happen and it's open to the union to be shown any time they like. I suspect this hasn't happened because the parties have been headlong into discussions around the rationalisation of their various instruments.

PN1050

THE COMMISSIONER: Yes, I understood that.

PN1051

MR GARDNER: Which is a long involved process, and that's perhaps why the issue hasn't been dealt. Particularly because you've got an agreement which provides for more than the award position, but our point is that the safety net increases must be applied to the proper base, being a weekday base and a higher one for weekend and public holidays. Commissioner, principle 2 - if I could just briefly turn to the principles again.

PN1052

Principle 2 talks about when an award may be varied without it being regarded as above or below the safety net. The point we make is if you trace through each of those subparagraphs, it can't be said that any of those matters were satisfied or indeed any attention turned to those types of matters that when it came to varying the relevant award.

PN1053

That's our position in respect of the on-call allowance, except to say that when it comes to retrospectivity, it's not as if the CSL has sat on its hands in respect of this issue. This was something that CSL has known about for a period of time, it has acted pro-actively. It's brought this application to resolve the issue as a consequence of it being brought to its attention in the latter half of last year.

PN1054

There was some discussion about that, but it has in no way been tardy in respect of this. The issue does have real consequences, once again, because the EBA relevant enterprise agreements rely upon the awards by making a generalised reference to allowances in particular awards and the ..... 1998 award. So this does have real consequences. If you are with us, Commissioner, in respect of the error then we say it necessarily follows that in those circumstances, in circumstances where we see ......someone's hands, given the nature of the consequences that retrospectivity ought to apply.

PN1055

That occurs because we say there one of two ways, Commissioner. Section 146 talks about exceptional circumstances, we say they are made out for the reasons I've identified. Alternatively, it's open for you to exercise your power under section 111(1)(q) of the Act, that provision providing the Commission the power to remedy defects such as this. Again there's no good reason why that can't apply retrospectively in these circumstances. That's our position to the question of
on-call. I'll move to the position of the shift allowance.

PN1056

THE COMMISSIONER: Yes.

PN1057

MR GARDNER: The union's position, it seems, is that the parties consented to this but because they intended to go back to the pre-1992 position, where they say the position was that you enjoyed a penalty when you were on recreational leave for any time you worked shift, not just Saturdays or Sundays.

PN1058

THE COMMISSIONER: I think they went further than that, didn't they? I think they said that it was acknowledged at the time that in fact there had been an error in the making of the 1992 award in that this had been left out. That's my understanding of what was being put. It was not intended in 1992 that the terms and conditions should be reduced by the 1992 award.

PN1059

MR GARDNER: Yes, that's right.

PN1060

THE COMMISSIONER: There wasn't an intention in 1992 to reduce their terms and conditions when they moved to the 1992 from the pre-existing conditions. There was no intention to reduce their conditions and that this was inadvertent.

PN1061

MR GARDNER: That's right. So they say that there was an error in the making of the 1992 award and that the parties sought to cure that when it came to 1996. If they don't have any evidence of that it remains a highly speculative proposition. It is no more than mere assertion, it is at direct odds with Mr Whitley, who says that there were no discussions along the lines of restoring the pre -`92 position and that was supported by Mr Brierley who in cross-examination volunteered that there were no discussions regarding the pre-1992 position or conditions, I think was the words he used. Faced with that evidence and the mere assertion of the unions it is a very difficult hurdle to jump indeed, to say that in fact we were in error in 1992.

PN1062

THE COMMISSIONER: You don't say that there was an error in between 1992 and 1996 when the conditions in relation to work on Sunday were reduced?

PN1063

MR GARDNER: We make no comment about that.

PN1064

THE COMMISSIONER: It doesn't appear to have been minuted in any of the documentation but it's clear on the face of the record.

PN1065

MR GARDNER: We just don't know if that was there or not. What I can say, though, is that it flies in the face of the actual words in the '92 award. If I can take you to clause 20D of the '92 award, Commissioner, clause 20D deals with shift work employees.

PN1066

MR GARDNER: It talks about the shift penalty. It then says:

PN1067

This additional payment shall not be taken into account in the computation of any other payment based on salary ...(reads)... payment is made.

PN1068

Those words seem to fly in the face of the union's assertion that the '92 award was somehow a mistake because they appear to deal with an issue.

PN1069

MS COOPER: Excuse me. Could I just ask what clause - what award you're reading from?

PN1070

MR GARDNER: Yes.

PN1071

THE COMMISSIONER: The 1992 award in clause 20(d).

PN1072

MR GARDNER: Just a further reference, Commissioner, the similar - - -

PN1073

THE COMMISSIONER: Clause 26(e) then directly contradicts that one, doesn't it? Well, it's between ..... with (g).

PN1074

MR GARDNER: Yes, but you're dealing with a specific provision there which presumably intended to qualify that generally but outside of that specific reference one would have thought, that there is no room for additional payments. It's as if the pays have turned their minds specifically to that point. The similar provision, just for reference, Commissioner, the '96 award is found in clause 28.2.2.

PN1075

THE COMMISSIONER: Which is then directly above 28.4, which says something different.

PN1076

MR GARDNER: Once again, the only conclusion to reach is that generalised statement is to be read subject to the more specific provisions which have been identified. That's the only conclusion which can be reached - the two competing clauses for that type of work to do. Commissioner, can I refer you to the actual drafting process? I anticipate you will be similarly concerned about what you might say is speculative here. But in any event, it is worthwhile examining what has happened because if you look at document 31 of the CSL documents relating to the 150A review - - -

PN1077

THE COMMISSIONER: Is it a transcript?

PN1078

MR GARDNER: Yes, there is transcript and then behind that transcript there is - I'll take you to transcript first. At page 6 of the transcript - sorry, it's tab 31 - - -

PN1079

THE COMMISSIONER: This is Mr Brierley.

PN1080

MR GARDNER: Yes, Mr Brierley, top of page 6. What he does here is earlier on in the page indeed he referred to a bundle of documents. He describes document 1 as the award simplification timetable. Document 2 is some letters. Document 3 is the matrix award simplification table. We understand the documents behind the transcript to be that bundle of documents. You turn past the transcript and you get to a document which is CSL1.

PN1081

THE COMMISSIONER: That's what he handed up, yes.

PN1082

MR GARDNER: Yes, it looks indeed like the document he handed up. Then we move to the matrix itself. What has happened here is the first copy is the new clause, so he's referring to 28.4 as the new clause. 26(e) is the Saturday work provision. 27(g) was the Sunday provision. It seems that the intention was to simply merge that into the one provision in the interests of meeting the section 150A review objective of simplifying and cleaning up and tidying up the awards.

PN1083

If I could take you back to the transcript, back to page 6, Mr Brierley talks at around paragraph 35:

PN1084

The intention of the result of the process has been to remedy the six deficiencies that are highlighted ...(reads)... we have tendered.

PN1085

Then we go to document 6 and there is nothing there which reflects the
relevant - - -

PN1086

THE COMMISSIONER: Which is document 6? Is that the matrix?

PN1087

MR GARDNER: Document 6 is the summary. It's the last document in the folder or ought to be.

PN1088

THE COMMISSIONER: Summary of award clause updates.

PN1089

MR GARDNER: Yes. Earlier on in the transcript, about line 11 to 12 he says:

PN1090

Document 6 - I'm sorry, the award clause updates.

PN1091

Further down here, around 35, he says:

PN1092

Not alter the conditions other than what has been stated in the summary on document 6 has been intended.

PN1093

THE COMMISSIONER: None of that refers to the change on Sundays either, does it?

PN1094

MR GARDNER: No, that's the point. Yes, that's the point, yes, and in circumstances where this was a consent position we say that, that is quite compelling. In the '96 award, as to what ultimately happened, that is the interpretation which might be put, there's two interpretations open, we see, and I'm talking about 28.4 of the '96 award. Either you only get the penalty on Saturdays, that interpretation being brought about by the fact that subclause (4) sits under the 28.3, which is related to Saturdays, or it's an independent one and the view is that you get it at any time.

PN1095

THE COMMISSIONER: If you look at generally the drafting instructions in relation to these awards, in relation to drafting of the section 150A review, then the drafting would suggest that it is a separate item to 28.2 and 28.3 in which case there has been a change to the safety net once again and once again there has been a failure to have regard to the principles. This simply wasn't brought to the Commissioner's attention and that summary of award clause updates combined with the submission made by Mr Brierley makes that abundantly clear. The Commission had no opportunity to review this change.

PN1096

THE COMMISSIONER: At least the parties were of the view that it wasn't a change to the safety net because it was by reference to other awards. It was not a provision which was above the safety net.

PN1097

MR GARDNER: Except to say that there is no evidence about that.

PN1098

THE COMMISSIONER: Well no, there's no evidence about a lot of these things, Mr Gardner. There's no evidence that the change to payments on Sunday was discussed by the parties as being above or below the safety net either, is there?

PN1099

MR GARDNER: What we have evidence of is that there were no discussions which bear out the point that you have just made. There were no discussions in the '96 award rectifying if you like, the position to go back to the pre-'92 position. I think both Whitley and Brierley make that plain. Brierley in cross-examination makes that plain. It says there were no discussions about that and the unions don't have any evidence about that at all other than the mere speculation that they had. One would have expected even if that's right, that the parties thought, Well, okay, we'll consent to varying this to go back to the pre-'92 position. One would have expected, given what Brierley says here on transcript, that would have been mentioned but Brierley makes it plain the intention here is to remedy the deficiencies highlighted at 150A(2) but not alter the conditions of employment other than what's been stated in the summary of document 6 that we have tendered.

PN1100

THE COMMISSIONER: ..... makes the point again, but he also doesn't mention the changes in relation to Sunday duty, does he? He was unable to explain that in the witness box. Yet there clearly is a change.

PN1101

MR GARDNER: Yes, there clearly is a change other than to say that it was an unintended consequence.

PN1102

THE COMMISSIONER: I don't think he said it was an unintended consequence. We'll have to look at his evidence.

PN1103

MR GARDNER: Yes. What he says in his evidence supports what is in the transcript there.

PN1104

THE COMMISSIONER: What you are suggesting is that Mr Whitley and Mr Brierley presided over a series of errors in two consecutive awards. Is that what you're saying? That under their direction, CSL engaged in a series of errors which affected people's entitlement, or may have affected people's entitlements. Is that what you are saying?

PN1105

MR GARDNER: When you say affected their entitlements in respect of the
on-call allowance, the error which has been made sees more than a doubling of the rate for week day work so yes, that error results in a windfall going to employees potentially. When it comes to the rec leave situation the situation might be, not that there is a loss with respect to Sundays but there is a gain again for employees in that they get their relevant allowance on rec leave whenever they would have otherwise been working the shift.

PN1106

THE COMMISSIONER: That's not an unusual provision Mr Gardner.

PN1107

MR GARDNER: It may not be. I understood your point to me was that they'd made errors, it has impacted entitlements and I was merely saying that as the awards read, it impacts entitlements in a positive way for employees.

PN1108

THE COMMISSIONER: But not the one on Sunday duty. The Sunday duty one is a negative one, isn't it?

PN1109

MR GARDNER: Unless you take the view that they get it any time. Unless you take the view that the provision - - -

PN1110

THE COMMISSIONER: I'm talking about the difference between 27B in the 1992 award and 29.2 in the 1996 award. 27B says:

PN1111

For Sunday duty not in excess of the prescribed weekly hour's payment should be made at the rate of single time additional to the ordinary rate of pay.

PN1112

The other one 29.2, says:

PN1113

For a Sunday worked not in excess of prescribed weekly hours payment will be made at the normal rate of pay.

PN1114

MR GARDNER: They might be at cross purposes. Let me just - '92 - - -

PN1115

THE COMMISSIONER: The 1992 award, clause 27B and the comparable provision appears to be in the 1996 award, clause 29.2. I'm assuming that if I go and have a look at that matrix, that is what it will say, but it is not the same provision. I am just starting to wonder if that is also an error how many more errors there are?

PN1116

MR GARDNER: There might be a range of errors. We can only deal with what we have.

PN1117

THE COMMISSIONER: It could be a comedy of errors.

PN1118

MR GARDNER: It may well be a comedy of errors.

PN1119

THE COMMISSIONER: If you look at your matrix document which you referred me to under tab 31, it says:

PN1120

Sunday work 29, replaces 27A to F.

PN1121

There is no mention of there being any change in the conditions. If you look at the summary of the award clauses update, there's no mention of there being any change in the conditions in relation to Sunday work. There's no mention in Mr Brierley's submission of it either. So is that just another error or was that intended?

PN1122

MR GARDNER: We don't have anything on that whatsoever. What we're dealing with is the issues at hand. We can't speculate one way or another. This does underscore the fact that errors can be made and are made. I think that there were errors identified in the payroll document that Mr Whitley introduced as well. I just wanted to close by saying that the 150A would be a process, ran alongside of 113 process, but it is plain that there was no consideration, no turning of the mind before the Commission, of the particular issue at hand. Accordingly, again, the arbitrary principles weren't complied with in a similar fashion as weren't complied with in respect of the on-call position. We say similar things about the question of retrospectivity.

PN1123

THE COMMISSIONER: What do you say about the issue of retrospectivity in relation to an award that's been entirely superseded, because I'm assuming in your submissions that this error goes back to 1996; it doesn't appear only in the current award.

PN1124

MR GARDNER: Yes, it does. Whatever the issue there, I think that - I mean, if I haven't clarified that then I apologise. We are making the variation from 1998 and the Commission need not deal with the 1996 position.

PN1125

THE COMMISSIONER: You're not seeking to vary the '96 award.

PN1126

MR GARDNER: That's right.

PN1127

THE COMMISSIONER: Only the '98.

PN1128

MR GARDNER: That's right.

PN1129

THE COMMISSIONER: So when you were talking about retrospectivity in relation to both of these, you are talking about retrospectivity until 10 November 1998.

PN1130

MR GARDNER: That's right. We've had some focus on 1996 for obvious reasons but we don't need to review the 1996 award. If it please your Honour.

PN1131

THE COMMISSIONER: Ms Cooper.

PN1132

MS COOPER: Thank you Commissioner. If I could just initially correct some minor errors in my written submissions - the CPSU's written submission initially. That's CPSU2. Just go to page 4 paragraph 21 where it says on the third line:

PN1133

The relevant clauses were clause 5(d).

PN1134

That (d) should be an 8.

PN1135

THE COMMISSIONER: 8(d), is it?

PN1136

MS COOPER: No, it's 5(d). Remove the d and replace it with an 8. In clause 23, just for clarification:

PN1137

The public service arbitrator's determination number 6 of 1981.

PN1138

I've got:

PN1139

See determination 6 of '81 in union folder specifically incorporated.

PN1140

If you'd just insert the words there "at clause 8", so clause 8 of that determination incorporated clauses 5, 11 and 12 of the ..... determination. Similarly in clause 24 on the third line, that should be clause 19 subparagraph (6), not subparagraph (5). On page 5, clause 29, the last line:

PN1141

See the submissions at tabs 16 to 18 of the CSL materials.

PN1142

That should be:

PN1143

At tabs 15 to 17 of the CSL item 51 folder.

PN1144

At page 6, paragraph 31, just remove the last two sentences in parentheses:

PN1145

The submissions appear at tab 18 of the item 51 review folder.

PN1146

They are actually referred to in paragraph 29 and are at tab 15 of the item 51 review folder, so that attachment to the submissions wasn't necessary. There was quite a deal of information in that particular submission. Finally page 9, paragraph 15, the reference to the 1997 safety net review case should be print 1997 not "print 1977".

PN1147

The issues in relation to the principles, just sort of starting at the back end first, I think we deal with in our written submissions, but consequent to what Mr Gardner has had to say I'd just like to add a few other points in relation to the issues and the application of the safety net.

PN1148

Changes are not necessarily above the safety net if they're reinserting something mistakenly taken out, for example, shift loading on recreational leave. That was more in the way, we would say, of a correction as part of the section 150A review process and it was consistent and appropriate with the section 150A review. We also note that a Full Bench was not established to remove the entitlement to shift allowance on recreation leave for weekday workers in the 1992 award. In addition, in relation to the shift allowance, if there was an error in the 1996 award - I mean, the parties almost immediately again commenced looking over the award for the award simplification process, so there was an opportunity to correct that in the 1998 award and that still wasn't taken.

PN1149

In relation to the on-call allowance, this was done by way of deleting a lower allowance. It wasn't inserting something entirely new or inserting something that hadn't been paid previously in the workplace, so we would say it wouldn't attract the safety net principles in that way. But even it was - - -

PN1150

THE COMMISSIONER: It was altering the value of that allowance in a way inconsistent with the principles insofar as they relate to the adjustment of allowances.

PN1151

MS COOPER: We would say that they're consistent with principle 5. At page 29 we think that it was obsolete. The rates in the 1996 award were out of date. There was an averaged rate being paid, but that averaged rate reflected the EBA rate, not the award rate. Again, I haven't done the math, but if you examine what the Sunday/Saturday rate was compared to the Monday to Friday rate and took an average it wouldn't be that far away from the $1.58 rate. Mr Whitley in his evidence agreed that this was more administratively efficient, this process of paying an averaged rate, so we would say item 5, when the award is reviewed again, starting with 49(7) and (8) and 51(6) and (7) so that it does not prescribe matters of detail or process that are more appropriately dealt with by being at the workplace or enterprise level, does not prescribe work practices that restrict or hinder the efficient performance of work. It does not contain provisions that are obsolete or need updating. We say that in the context of the on-call allowance all of those principles would apply equally and it would be justified on that basis.

PN1152

THE COMMISSIONER: Why select that allowance to update and not update any of the others?

PN1153

MS COOPER: Probably because that was a live issue on the ground. It was actually something that was happening. A single rate was being paid to some employees. The other allowances were being paid presumably in accordance with the award and who really knows? So the issue didn't arise with those other allowances. The allowances that were being paid, were removed. Even if the changes were above the safety net, CSL's written submissions that we took the witnesses to yesterday at tab 15 of their item 51 folder, advised Commissioner Larkin that he had jurisdiction to grant the draft order. CSL's written submissions in relation to the item 51 review advised Commissioner Larkin she did have jurisdiction to grant a draft order.

PN1154

We also noted on that last page yesterday of the submissions that CSL was prepared to make a section 113 if it was required to do so. If you recall it was a complete redraft of the award, a complete replacement of the award. It wasn't just a few clauses that were selected for amendment. CSL's written submissions also noted that variations could be made to the award under the item 51 review. In those circumstances those submissions, and in addition the ones in our written submissions, we have a ..... of those issues.

PN1155

In relation to the CPSU witnesses, a lot of documents were put to Mr Ward and he was asked whether or not he had seen them. Mr Ward said there was a document distributed to the unions and he was on that distribution list. Everybody had received it. However, it would be simple to put this question to Mr Brierley by Mr Whitley but this wasn't done by counsel for CSL so what we say is that the Commission shouldn't draw any adverse inferences from the testimony of Mr Ward or from that part of his testimony on the basis that the question that it was putting to him it didn't even put to its own witnesses. So we have no evidence of the source of that document, we have no evidence, who created it, who was responsible for it, although I assume it was CSL and where it was sent. There was no evidence at all that Mr Ward received any of these documents.

PN1156

In relation to Mr Harris' evidence we seek only to draw the Commission's attention to the fact that contrary to CSL's position there was discussed a single rate, albeit it an averaged rate, and in that context his evidence goes to contradicting CSL's evidence that this will never happen, that this hasn't happened, that there's only two rates. There was in fact a third rate, an averaged rate. There were discussions about it. Yes, there's no further evidence on the papers of what happened or from the witnesses. It was a long time ago but it is the fact that a single rate on full allowance was being paid to some employees at CSL.

PN1157

Perhaps if I go now to the CSL witnesses. I think throughout CSL's witnesses have been totally unreliable. Perhaps I could start with Nicole Jenkins's statement. In her first statement at paragraph 13 she says:

PN1158

The blank space where the 64 cent hour rate was supposed to be listed was marked with a highlighter pen. The document was retrieved from the Commission files.

PN1159

There's nothing in there about the fact, as we found out yesterday, that Ms Jenkins had herself made that highlighter mark on the document. It would have saved us all a lot of concern if that admission had been made early on in the proceedings. Similarly, Mr Whitley's and Mr Brierley's evidence is confused and we say unreliable. It has the appearance, as far as we can say - saying what needed to be said to support CSL's case. I think this is illustrated by their constant contradiction of each other when Matt Whitley was asked why - he was reporting why the two of them were reporting directly to Kelvin Milroy. Mr Whitley responded that because they were in different locations and he was in closer physical proximity to Mr Milroy, that was - - -

PN1160

THE COMMISSIONER: Mr Brierley said he was next door, in the office next door.

PN1161

MS COOPER: That's right. Yes, and when Mr Brierley was asked this question he responded his office is next to Kelvin Milroy's. So, in the midst of all that who knows what the actual facts were about the reporting arrangements. Similarly, when asked who prepared the - - -

PN1162

THE COMMISSIONER: Wasn't that just that neither of them wanted to be seen to be less senior than the other. That was my impression.

PN1163

MS COOPER: A similar feeling was contributed to the response when they were asked who prepared the final submissions. Whitley said Mr Brierley did and Mr Brierley said Mr Whitley did it. Both of them stated that if it wasn't in the minutes it didn't happen but Mr Whitley acknowledged that we don't have all the minutes. He gave evidence that there were a lot of discussions outside the single working party meetings and Mr Brierley said all the changes were in the minutes but when a significant change was pointed out to him, that is the change to Sunday payments from the 1992 to 1996 award, he agreed it was a significant change and acknowledged that it wasn't in the minutes.

PN1164

Another anomaly of Mr Whitley's evidence is that he stated that Boyd Williams from the CPSU picked up the overtime rate issue. It's a matter of fact that Boyd Williams ceased all involvement with CSL from 1997. We say it's true - - -

PN1165

THE COMMISSIONER: It was some years ago, yes.

PN1166

MS COOPER: Although Mr Boyd was still with the union in 1998, he wasn't working with CSL, so even if Mr Whitley did, through some fact or alternative means, come across Mr Williams and they somehow talked about the overtime issue, it is in that respect even further evidence that there were a lot of people involved in this process and a lot of discussions that weren't reflected in the minutes. All we say is that this is evidence of Mr Whitley's confusion and his faulty memory as to what actually occurred during the various processes in relation to the changes to the awards.

PN1167

In relation to the specific claims, the shift allowance loading, Grant Whitley did agree in his evidence that payment of shift loading on recreation leave for all CSL shift workers had been a longstanding entitlement. He agreed it may have been discussed. He did deny this in re-examination but it does stand as a contradiction in his evidence. He agreed that it was possible that it had been restored as a result of a section 150A review process. When he was taken to the six drafts of the 1996 award in the union folder Grant Whitley agreed that they all contained the clauses that appeared in the 1996 award and he agreed that CSL prepared all the documentation so the only conclusion that can be drawn from that is that this was an intended change. It defies acceptance that such a significant change between 1992 and 1996 and beyond to the 1998 award was not intended. Certainly from the 1996 to 1998 award Grant Whitley agreed that there was not a change to the effect of the clause.

PN1168

While Robert Brierley said he was certain it hadn't been discussed, he responded in his evidence yesterday, as I briefly alluded to previously, that all changes to entitlements were minuted. Then when I noted about the loss of various entitlements, he said "Well, only significant changes were minuted". Then I took him to the comparison between Sunday rates in the 1992 and '96 award and I identified the fact that those minutes did not reflect the change, he reluctantly acknowledged that this was the case. He agreed that it was a significant change. So again this throws into doubt his evidence and statement that all significant changes were documented.

PN1169

In view of these concessions made by CSL and in view of their own contradictory evidence, in our submission CSL has not provided sufficient persuasive evidence to satisfy the Commission that the variation to the shift allowance loading should be made. We say their application in this respect should be dismissed. In relation to the on-call allowance, similar contradictory evidence was received from CSL. In answer to one question Grant Whitley responded that payroll was checking the documentation but no one found any problems. A little later when queried as to why it might be that payroll didn't pick up the on-call discrepancy he said that payroll relied on his advice without challenge.

PN1170

MS COOPER: This is in any way consistent with Mr Harris's evidence.
Grant Whitley said that allowances were dealt with in the working party in a straightforward manner. As he said:

PN1171

Once we sorted them out we didn't go back.

PN1172

This is consistent with a view that the deletion of the one rate of on-call allowance was determined relatively early on in the process as stated by Mr Harris. We do have those documents which show the two rates going up to May, but those documents, as I said before - they weren't tendered to CSL's witnesses to confirm their source or their distribution. The covering note on all those documents reads as if it's correspondence from the human resources team to the employees, so the fact that the two on-call allowance rates are in each of those documents only reflects payroll's complete acceptance without challenge of Mr Whitley's incorrect advice that on-call rates was still present in the award. In that respect we can't really say that the two on-call rates were still in the award as of May 1998 insofar as the working party was concerned and the stage that it was at in its discussions.

PN1173

What the Commission can be confident of was that there were small group discussions. Who was in those groups and what they discussed may be an issue of contention, but those discussions did encompass on-call allowance. What we ask the Commission to infer from that is that it was agreed between the parties very quickly and informally and consistently with what Grant Whitley said about how allowances were dealt with to adopt a single rate. It was consistent with an emerging practice, at least in respect of the plant attendance, and Grant Whitley admitted that it was administratively easier and that it gave the employees certainty in their wages.

PN1174

In any event, what really happened with on-call allowances is not established with any certainty by the minutes or, dare I say, by the evidence before the Commission yesterday. But what we do know is that CSL prepared all the documents. CSL chaired all the meetings. Although both Mr Brierley and Mr Whitley said they chaired the meetings, it was CSL. The documents were drafted and prepared by senior HR and IR personnel in CSL and were distributed by them, even if only in part, to other HR and HR-related areas of CSL.

PN1175

As Grant Whitley said, there were dozens of versions of the draft award, so it's reasonable to conclude that there were dozens of opportunities for CSL to pick up the anomaly or error if in fact there was one. It also defies belief, in our submission, that at some stage at least one of these senior CSL personnel did not go over that final draft with a fine tooth comb so to ensure there were not any inadvertent cost implications for CSL. CSL presented the document to the Commission as the consent document. Despite Commissioner Larkin making some changes, the clauses the subject of this application were not affected by those changes.

PN1176

In these circumstances the unions submit that the Commission should have regard to the decision of Munro J that we refer to in our submissions. In that decision - we've go the bundle of authorities there. I should have perhaps handed them up earlier on.

PN1177

THE COMMISSIONER: Perhaps it was, Ms Cooper, that Mr Whitley thought it was Mr Brierley's job to check it and Mr Brierley thought it was Mr Whitley's job.

PN1178

MS COOPER: We would say the difficulties in the management area of CSL which seem to be highlighted by this application and the problems and errors that may have occurred shouldn't be visited on the employees of CSL. The employees of CSL are entitled to look at their award and know that that's what applies. They shouldn't be faced 6 years, 7 years down the track with being told, oops, we made a mistake. No, we don't want to pay you. Let's change the award. It's not fair and it's not just and in our submission as it was put up as a consent document the Commission shouldn't interfere with that document.

PN1179

The decision I'm referring to is - - -

PN1180

THE COMMISSIONER: The vehicle industry one? Is that the one?

PN1181

MS COOPER: PR908720. Sorry they're not in order. In that decision there was also an argument that there was an error made in the making of a consent award that a particular reduction entitlement hadn't been discussed between the parties. Munro J said as follows:

PN1182

The Commission is reluctant to interfere with consent awards or consent variations of awards ...(reads)... by the mere assertion.

PN1183

I think that's a very similar position in which the Commission finds itself in respect of these applications. In addition I'd also like to refer to the decision of the Journalists' Metropolitan Daily Newspapers decision. It starts at page 760. I take you to page 774. There's a great deal of reference in that decision to consent awards and in what circumstances the Commission or the Court in those circumstances will interfere. At the second paragraph on page 774 the Court said:

PN1184

The importance of agreements or consent awards cannot be minimised, removing as they do the atmosphere ...(reads)... those directly involved.

PN1185

We say those sentiments are pertinent also to the issues before the Commission in these applications. Again, although there was some dispute about whether entitlements were negotiated or not, I think it's fairly clear on the evidence that's available from the minutes that there was some horse-trading, that there were some compromises, that there were negotiations. In those circumstances we think the Commission should be loathe to interfere with the award as finally put before the Commission.

PN1186

We don't deny that there are problems with the awards and the parties are currently in negotiations as agreed in their last EBA to rectify those problems. In the union's submission, the issues of concern to the parties are best dealt with in a holistic way through that process or even through a Commission-assisted process and not in the piecemeal fashion so being argued before you and not in a fashion that is only to the benefit, obviously, of the employer and not the employees.

PN1187

In relation to the issue of retrospectivity, we've only just been apprised of CSL's arguments in this regard, but in any event Mr Gardner said it's not as if CSL has sat on its hands. It's been 7 years since this award was made. The union's awareness of the failure by CSL to pay the correct amount has only recently come to our attention and that is why the unions made the claim. The unions would be prepared to resolve these issues, as I said, through the enterprise bargaining process and have indicated so to the company, however the company has still sought to proceed with this application.

PN1188

In any event, we do not agree that CSL has sat on its hands [sic]. We can't believe that it has taken 7 years for them to discover this anomaly. If anything, it just highlights their inefficiency and it should not have any bearing or have any effect on the employees' entitlements. Section 146 also says that exceptional circumstances have to be made out to grant retrospectivity. It doesn't say special circumstances, it says exceptional, and I think it's generally been regarded that exceptional means just that, it means something more than special, something highly significant. In the circumstances and in view of all the other difficulties and problems associated with this application, we don't think retrospectivity would be justified if the Commission was of a mind to make the orders as sought. Subject to any other questions, Commissioner, that would conclude our submissions.

PN1189

THE COMMISSIONER: Thanks, Ms Cooper. Any reply Mr Gardner?

PN1190

MR GARDNER: Just briefly. Firstly, Ms Cooper seems to want to confuse the single rate or average rate which was paid with a per hourly rate. There is a distinction between the two. When we talk about an average rate it's not as if we are speaking of coming somewhere between $1.58 and 64 cents. The average was the average quantum which was paid and that calculation took into account the two separate rates, they are different things and that is an important distinction which seems to be lost on the other side.

PN1191

Reference was made to, again, the allowance for on-call being deleted. We say that's a complete nonsense. As you alluded to, Commissioner, with respect, the allowance has been varied, it remains in a different guise but it's been varied. We say that even if there was consent between the parties on that particular issue it was not open to them to go to the Commission and seek the variation which was sought without proper regard to the principles.

PN1192

That issue now being brought to the Commission's attention, in circumstances where there has been a significant change, warrants the restoration of the safety net having regard to those factors. If the union want to move to a single rate it's open for them to seek a 113 and for us to have a merit review, for us to explore the history and the practice and the like, to have a look at what's happening in industry and come to a conclusion about what the safety net ought to be. But that's not what this debate is about.

PN1193

Finally, I just wanted to say that - we refer to Ms Cooper's submission about errors shouldn't be, I think, visited upon the CSL employees. It's not as if, it's supposed to be in context, because it's not as if the employees would be worse off in the sense that they haven't been paid in the way that the union contends. The payment has been based on the two separate rates and Ms Cooper simply asserts that CSL has sat on its hands. The reality is, the evidence is upon coming to CSL's attention, it has acted. To the contrary, whether or not Mr Harris accepts that he's seen certain documentation around the structured allowances, it seems from the evidence of Mr Whitley that he distributed this information widely, it went to delegates, it seems odd that this has only come to the attention of the union now. So that argument raises something of a two-edged sword.

PN1194

What the unions would have you do, Commissioner, is say that the Commission ought to ignore the proper processes for the variation of awards. It is entirely against the public interest that, that occur. The proper position is that the safety net is restored and if there is to be any change from there then regard can be had to the requisite submissions. If the Commission pleases.

PN1195

MS PARKES: If it pleases the Commission, I apologise, there's three little points I wanted to add and to be fair to Mr Gardner if there's anything out of what I want to say obviously he should be allowed the opportunity to comment.

PN1196

THE COMMISSIONER: Yes, Ms Parkes.

PN1197

MS PARKES: The first point was just the NUW obviously adopts the position of the CPSU in this particular matter. Just in relation to the application of the principles in the process of the award simplification in 1998, much has been made by CSL that the principles weren't properly complied with and in particular in relation to the shift provisions for recreation leave that both in '96 and '98 nothing was sought in respect of referring that to a Full Bench because it would be seen to be above the safety net. Similarly, the issues about the variation to the allowance not being referred in consideration with the principles.

PN1198

The point I would make is CSL seems to pick and choose when it's appropriate to refer to the principles or not. The evidence established that there was a change to the overtime provisions to the benefit of employees to make them consistent, that they had previously been two standard. So technically that's a change above the safety net as well yet it seems to be okay to ignore that particular change and yet focus on other changes that are allegedly not consistent with the principles. So we seem to have a document before the Commission where some bits were above the safety net but it's okay we'll just ignore that but other bits we don't like so we'll make an argument that they shouldn't have properly been granted.

PN1199

My point is, in this whole comedy of errors, there's a whole range of things in the document, overtime just being one example, which technically speaking would probably fall in the vote of being nominally above the safety net yet no argument is being made in relation to that clause that that was defective and shouldn't have been granted.

PN1200

My final two points just relate to retrospectivity. Section 111(1)(q) was referred to and we not interestingly that the applications have been brought as
113 applications to vary the award rather than 111(1)(q) correction order to correct a mistake in which event retrospectivity certainly can be granted. We just want to make that point that these applications haven't been brought pursuant to section 111(1)(q) but have been brought pursuant to section 113.

PN1201

Finally, Commissioner, in light of the fact that we've only heard the retrospectivity arguments today by Mr Gardner, if I could just refer you to one of the cases that was in the CPSU's submissions, it's in the bundle of documents before you, the Painters and Dockers case or the more formal reference is the Federated Ships Painters and Dockers Union v Adelaide Steamship Company (1960) 94 CAR at 579. If I could just briefly refer the Commission to pages 619 and 620, there's a heading on 619 a third of the way down, Retrospective Allowance to Casuals, at the bottom of the page and going across to 620 there's just an expression of some of the authorities on that particular issue we would endorse. Bearing in mind that it hasn't been brought as a section 111(1)(q) application in the form of a correction order but rather as an award variation, we endorse the submissions of Ms Cooper that exceptional circumstances would have to exist to justify any retrospectivity. If the Commission pleases.

PN1202

THE COMMISSIONER: Mr Gardner, in relation to?

PN1203

MR GARDNER: Yes, I was actually going to reply, I just make some comment on the Munro decision, so if I could do that first?

PN1204

THE COMMISSIONER: Yes.

PN1205

MR GARDNER: Well, he doesn't stand for any - in the sense that it obviously turns on its facts. What his Honour says is quite telling in terms of his appreciation of the evidence because it seems that here it was a bare claim made by the relevant union, I think it was, so that's why paragraph 23, page 7:

PN1206

For me now to determine the consent miscarried would depend on either conjecture ...(reads)... proved by the research.

PN1207

Plainly there needs to be evidence to support that there wasn't, in effect, consent, and we say we have that. It puts us in a different position to what his Honour, Munro J was apparently facing.

PN1208

THE COMMISSIONER: I don't think he's stating anything more than - which is a commonly accepted principle of this Commission - that the Commission is always reluctant to interfere with consent awards or consent variations. There's an assumption that when a matter comes before the Commission by consent that that's what it means.

PN1209

MR GARDNER: Yes, quite properly. I take it you're agreeing with me then, Commissioner. The other point is at paragraph 22, code of reasons and special circumstances to subtract from the consented positions:

PN1210

So long as the agreement falls in the bounds of matters allowed to be dealt with by agreement under the Act.

PN1211

Now, I'm not sure whether he's referring to allowable matters or something more broadly.

PN1212

THE COMMISSIONER: I'm assuming he's referring to section 89.

PN1213

MR GARDNER: Well, he may be but that stands for a broader proposition that the change must be within the bounds of the law. The emphasis that we make about compliance with the principles goes very much to that point. Now, in response to what the NUW says the application has been brought under 113 but the considerations which might be brought to bear would be similarly applicable in respect of 111(1)(q). We did make mention that it be open to the Commission as a matter of power to rely on that provision to remedy the defect. There's no prejudice to the other side in the sense that the considerations are the same. Those are the submissions.

PN1214

THE COMMISSIONER: Thank you. I reserve my decision in relation to this application. I will hand down a decision in due course.

<ADJOURNED INDEFINITELY [12.33PM]

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #CSL10 SUMMARY OF MINUTES PN987