C2005/3888, Transcript of Proceedings [2006] AIRCTrans 181 (16 February 2006)

TRANSCRIPT OF PROCEEDINGS

---

Workplace Relations Act 1996 14093-1

COMMISSIONER SIMMONDS

C2005/3888

TEXTILE, CLOTHING AND FOOTWEAR UNION OF AUSTRALIA
AND
BRUCK TEXTILES PTY LIMITED
s.170LW - Application for settlement of dispute (certification of agreement)
(C2005/3888)

MELBOURNE

9.36AM, TUESDAY, 31 JANUARY 2006

Continued from 3/10/2005

PN3210

MS FAWCETT: Commissioner, just to fill you in on what's happened since we were last before you. We've received your decision in the matter. The parties have had some informal negotiations to seek to reach agreement on, firstly, the nature of a position which might meet the criteria set out in your decision for Mr Arcuri to assume, and then secondly, the nature of orders that the Commission might make, an agreement hasn't been reached on either of those matters which is why we've requested that the matter come back before you. Both parties have prepared draft orders which I understand the Commission has a copy of.

PN3211

THE COMMISSIONER: Yes.

PN3212

MS FAWCETT: It might assist just to briefly outline what we see as the outstanding issues between the parties. In the course of the discussions that we've had the particular position has been outlined by the company which would involve Mr Arcuri having a role which was 50/50 in terms of his time in the final inspection and receiving and despatch departments at the Bruck Mill. This is in principle a position that Mr Arcuri would find acceptable. However, there are three issues, each of which we would say mean that the position as currently outlined wouldn't meet the criteria set out in the decision of the Commission.

PN3213

The first issue is that the company have been unwilling to guarantee that the position will be a day shift position. They've indicated that it will be primarily day shift, but that they reserve the right to change the shift arrangements should they see fit. Our interpretation of the decision, and we seek the Commission's guidance on this, is that the position, an acceptable position would need to be a day shift position and that's certainly what Mr Arcuri would seek.

PN3214

THE COMMISSIONER: What's the issue there?

PN3215

MS FAWCETT: You may recall, Commissioner, that the operations at the Bruck Mill operate 24 hours. There are three shifts. Day shift, afternoon shift and night shift.

PN3216

THE COMMISSIONER: Yes, I understand that. You're offering him day shift, are you?

PN3217

MS FAWCETT: The position that's being offered by the company is a position that they're describing as primarily day shift. However, they're refusing to commit to it being exclusively day shift and the position that Mr Arcuri - - -

PN3218

THE COMMISSIONER: Is that any different from any other employee?

PN3219

MS FAWCETT: It's different from the position that Mr Arcuri had firstly at Wilson's and secondly the position that he's assumed in the period since he's been at the mill since he transferred from Wilson's, which has been a guaranteed day shift position.

PN3220

THE COMMISSIONER: I didn't think that was the case. I thought the situation was that they - maybe my memory is getting rusty - but I thought that the transfer to the mill was on the basis that it would be day shift, but they retain their rights to move him to other places, but they would take into account his family responsibilities.

PN3221

MS FAWCETT: That was their position initially, Commissioner, but after a conciliation before another member of the Commission, a recommendation was made that the parties would agree to and in that recommendation it was made clear that the position would be a day shift position. I can find that document if it would assist the Commission.

PN3222

THE COMMISSIONER: I think it was only up to a certain date, though, wasn't it?

PN3223

MS FAWCETT: That was up until 30 June but what happened from that point on was that the status quo remained until the issues were determined by the Commission.

PN3224

THE COMMISSIONER: Yes, but when you say the recommendation, you're putting more into the recommendation than belongs there.

PN3225

MS FAWCETT: I don't believe I am, Commissioner. If you give me a moment I'll - - -

PN3226

THE COMMISSIONER: Well, are you saying that the recommendation of his Honour was that no matter what happened Mr Arcuri had to be on day shift? Is that what you are saying? Because that's not my understanding of the recommendation. The recommendation was that it would go for a certain amount of time, the parties would review it and try to come to an agreement.

PN3227

MS FAWCETT: Commissioner, what I'm trying to outline is in response to your question which was that - I understand to be, was the position he was previously on a day shift, an exclusively day shift position and the answer to that question is - - -

PN3228

THE COMMISSIONER: I understand that, but that's quibbling. That really is quibbling. I mean, you are absolutely 100 per cent correct in a legal sense, but in a practical sense, you are 100 per cent wrong. The situation was, there was a recommendation in an attempt to resolve the dispute that certain things happen. Now, these parties in this matter never seem to be able to get to agreement about anything and maybe his Honour should have taken that into account, but to suggest that his Honour's recommendation meant that Mr Arcuri had a guaranteed day shift position forever - - -

PN3229

MS FAWCETT: That's not what I'm suggesting, Commissioner.

PN3230

THE COMMISSIONER: Well, then what are you suggesting?

PN3231

MS FAWCETT: What I'm suggesting is - - -

PN3232

THE COMMISSIONER: Until such time as you can get an agreement that he had a guaranteed day shift position.

PN3233

MS FAWCETT: I'm suggesting no more than this, Commissioner. That the position that Mr Arcuri held at Wilson's was a guaranteed day shift position because there was only day shift at Wilson's.

PN3234

THE COMMISSIONER: Yes.

PN3235

MS FAWCETT: I'm suggesting that since Mr Arcuri transferred from Wilson's to the Mill he has worked in an exclusively day shift position and that that was one of the criteria of the recommendation. I don't suggest that the recommendation - - -

PN3236

THE COMMISSIONER: But the recommendation is no longer binding.

PN3237

MS FAWCETT: I understand that, Commissioner, but the issue that I'm addressing is whether the position that's being offered by the company meets the criteria set out in the decision of the Commission which is that it must have materially similar conditions of employment. Our submission is that if it's not a day shift position, then it doesn't.

PN3238

THE COMMISSIONER: Are you going to take me to the paragraph?

PN3239

MS FAWCETT: In the decision, Commissioner. The relevant paragraph is 26:

PN3240

I am satisfied that the company believe that by maintaining his rate of pay they were transferring Mr Arcuri to a position that did not have a lower rate of pay and that because it was a day shift position, his conditions were not materially different.

PN3241

THE COMMISSIONER: But the position he's been put into is a day shift position.

PN3242

MS FAWCETT: That's the issue that we have with the position. If it's a day shift position, we're content with that, but the company won't - - -

PN3243

THE COMMISSIONER: No, the position is day shift, but they reserve the right to require him to work in other positions which may not be.

PN3244

MS FAWCETT: I don't understand that to be what they're saying. I understand them to say, they're saying that it's a condition of the position that they want to put him in, that he can be put on another shift.

PN3245

THE COMMISSIONER: Well, that's not what I understand it to be, but you might be right.

PN3246

MS FAWCETT: Commissioner, if the company is prepared to say to you today - - -

PN3247

THE COMMISSIONER: No. The distinction is in paragraph 3 of the employer's draft order. You see, we've got a position and then we're talking about Mr Arcuri in point 3. The position is in point 1.

PN3248

MS FAWCETT: I think that the draft order at - there's two documents that the company have provided. One is a letter which explains some additional things about what they see the position to entail, and the other is the draft order, and at paragraph 3 of the draft order they say:

PN3249

Rob Arcuri will be on the same shift arrangements which he has been on since coming to the Mill.

PN3250

THE COMMISSIONER: But the position is a day shift position.

PN3251

MS FAWCETT: If the company is prepared to stand up here today and say to you, the position that we're offering is a permanent day shift position, then that's acceptable.

PN3252

THE COMMISSIONER: Are you saying that the union is quibbling about these words in here, where in paragraph 1 they talk about the position and in paragraph 3 they talk about what the requirements on Mr Arcuri might be from time to time?

PN3253

MS FAWCETT: We don't see it as a matter of - - -

PN3254

THE COMMISSIONER: Does it say anywhere that the position is other than a day shift position?

PN3255

MS FAWCETT: It says at paragraph 3, Commissioner, predominantly day shift.

PN3256

THE COMMISSIONER: It talks at paragraph 3 about Mr Arcuri. It does not talk about the position.

PN3257

MS FAWCETT: I understand the distinction that you're making, Commissioner, and if the company can say that the position is a day shift - - -

PN3258

THE COMMISSIONER: Is that why we're here today?

PN3259

MS FAWCETT: There are three issues that we're here for, but - - -

PN3260

THE COMMISSIONER: Okay, that's one. What's the second issue?

PN3261

MS FAWCETT: If I could just note that the reason that the issue of day shift is so important is that Mr Arcuri has young twins and he's responsible for the care of.

PN3262

THE COMMISSIONER: Yes, I understand that - - -

PN3263

MS FAWCETT: And the issue of the hours which he's had to work has been one which has featured prominently in this whole thing. So whilst it may be perceived as quibbling - - -

PN3264

THE COMMISSIONER: I understand that, but from time to time, from time to time they might be able to make arrangements with Mr Arcuri that meet the requirements of his domestic considerations and he works other than day shift.

PN3265

MS FAWCETT: Well, if it's suggested that they'll do that and they'll seek his agreement and - - -

PN3266

THE COMMISSIONER: They'll have to do that. No, you now go further, you're putting words in my mouth that weren't there. I wasn't suggesting that they needed to have agreement with Mr Arcuri to doing it. What they had to do was make reasonable provision.

PN3267

MS FAWCETT: Okay. Well, I don't mean to put words in your mouth.

PN3268

THE COMMISSIONER: Now, just because someone says I don't agree doesn't mean that the objective observer wouldn't judge that reasonable provision had been made.

PN3269

MS FAWCETT: I don't mean to put words in your mouth, Commissioner. I'm meaning to express the position of Mr Arcuri.

PN3270

THE COMMISSIONER: Well, I didn't use the word agreement at all, did I?

PN3271

MS FAWCETT: No, but I wasn't intending to paraphrase your view. I was intending to put the view of Mr Arcuri to you.

PN3272

THE COMMISSIONER: Well, then I'm putting back to you that I can't see any requirement for agreement. I mean, it's a question of whether the arrangements that the company makes are reasonable and take account of his domestic circumstances. Now, he might disagree with that for irrational reasons. People are known to be irrational. That's why this Commission used to exist, to deal with that irrationality. But anyhow.

PN3273

MS FAWCETT: Anyway, it's a matter for the Commission obviously. Our position is that in order to have materially similar conditions of employment the position needs to be a day shift position. That's not to say that some other position might not be offered to him in the future or he may be required to do something in the future. It's about the position that they're offering him at the moment.

PN3274

THE COMMISSIONER: Well, as I say, you read into what the company offers more than I read into it and that may be because of the relationship that exists between the company and the union. But it seems to me, quite clear on its face, that paragraph 1 is the position and there's no suggestion it's anything other than a day shift position. There is then a discussion at paragraph 3 about them being - might be utilising him on other shifts from time to time, and offering him overtime.

PN3275

MS FAWCETT: But, Commissioner, I don't see anywhere in paragraph 1 that the position is a day shift position.

PN3276

THE COMMISSIONER: Well, as a matter of fact, is the despatch receiving department open other than on day shift? What shift is it open on?

PN3277

MR ARCURI: It's afternoon, your Honour.

PN3278

MS FAWCETT: It's also open afternoon shift which finishes at midnight.

PN3279

THE COMMISSIONER: Is that right, Mr Pels?

PN3280

MR PELS: Commissioner, I understand sometimes they do do some afternoon shifts.

PN3281

THE COMMISSIONER: They do it as a shift or as overtime?

PN3282

MR PELS: A shift. Predominantly overtime on shifts.

PN3283

THE COMMISSIONER: So how often does it go on shift work?

PN3284

MS CLARKE: It will depend on the freightage coming in, sir.

PN3285

THE COMMISSIONER: So it's for receiving rather than despatching?

PN3286

MR PELS: The records show that Mr Arcuri has done a lot of overtime. He does undertake overtime.

PN3287

THE COMMISSIONER: There is no issue about overtime.

PN3288

MS FAWCETT: Overtime is not an issue, Commissioner.

PN3289

THE COMMISSIONER: No, I understand it's not.

PN3290

MS FAWCETT: Anyway, I think you understand our position.

PN3291

THE COMMISSIONER: Well, how often do you say they work shifts in the receiving department?

PN3292

MS FAWCETT: I understand from my instructions just received that there's a rotating shift arrangement. I'm told there's two sections in the receiving despatch area, one of which is day shift and the other of which is rotating day and afternoon shift.

PN3293

THE COMMISSIONER: All right. We'll get some explanation of that from the company, but - - -

PN3294

MR PELS: If I can assist the Commission, there's the wrapping section of the warehouse which is a combination of day and afternoon. But where Mr Arcuri is working, despatch, it's just day shift.

PN3295

THE COMMISSIONER: Is that right, Mr Arcuri?

PN3296

MR ARCURI: Yes, your Honour.

PN3297

THE COMMISSIONER: So what are we arguing about?

PN3298

MS FAWCETT: We simply want to know that the position is a day shift position.

PN3299

THE COMMISSIONER: The position is a day shift position.

PN3300

MS FAWCETT: If that's the case then we're happy - - -

PN3301

THE COMMISSIONER: Mr Arcuri just said so, the company said so. I - - -

PN3302

MS FAWCETT: You're right, Commissioner, and we may be being overly - - -

PN3303

THE COMMISSIONER: And the facts of the matter are, as I understand it, that Mr Arcuri has been working in the day shift position.

PN3304

MS FAWCETT: He has, yes.

PN3305

THE COMMISSIONER: Good. Jumping at shadows. Second issue?

PN3306

MS FAWCETT: Commissioner, second issue is set out in the covering letter attaching the respondent's draft order, but it's not actually raised in the draft order, which is that the company want to retain, as I understand it, and again I stand to be corrected and I hope that I am, so that as part of the position description they retain the capacity to direct Mr Arcuri to do alternative or additional work at their discretion. Now, our concern about that is that on its face what that means is that tomorrow when we all leave here, Mr Arcuri can be sent back to the back inspecting table forever. Now, we hope that's not the intention and we trust it's not the intention. However, we want to have that issue clarified.

PN3307

THE COMMISSIONER: I mean, you might want it clarified. You're not going to get it clarified by me. I mean, they've got that right. Now, clearly if they seek to subvert the order by doing that, we'll be back in here that quick it wouldn't matter, would it?

PN3308

MS FAWCETT: Yes, Commissioner.

PN3309

THE COMMISSIONER: But equally, for you to suggest he's always got to work in that position and can't be temporarily assigned to other duties because of some exigency of the company, that would be unreasonable too.

PN3310

MS FAWCETT: That's not what we would suggest, Commissioner.

PN3311

THE COMMISSIONER: No, I know you're not suggesting that.

PN3312

MS FAWCETT: But we want to maintain the integrity of the position by making sure that the duties are at the right level and are predominantly within the range of duties that have been outlined by the company.

PN3313

THE COMMISSIONER: You agree that the duties that have been outlined are at that level?

PN3314

MS FAWCETT: We're prepared to accept that, Commissioner.

PN3315

THE COMMISSIONER: Yes, all right. Well, Okay. I understand that you are very suspicious. Whether that's justified or not, I don't know. But anyhow, I hear what you're saying.

PN3316

MS FAWCETT: Presumably time will tell, Commissioner. The third issue relates to the breakdown of work between the two departments. What's been committed to is a 50/50 split between the two departments which we're happy with. However, what's not set out in the order is that what the company intend to do is have Mr Arcuri working predominantly in the final inspection area whilst he undertakes training which again is something that we're prepared to do, but we're concerned that the company won't put a time frame on how long that will operate for and we're concerned that what may happen is that Mr Arcuri will end up staying in final inspection and not doing as much work as the 50/50 split would indicate.

PN3317

THE COMMISSIONER: Then they'd be in breach of the order, wouldn't they?

PN3318

MS FAWCETT: Well, it depends on the terms of the order. So provided the terms of the order indicate that it is a 50/50 split.

PN3319

THE COMMISSIONER: Well, why can't the terms of the order in point 1, the terms of the order proposed by the company say 50/50 split?

PN3320

MS FAWCETT: Well, if that's what the company's position is, that it is going to be a 50/50 split - - -

PN3321

THE COMMISSIONER: Well, that's what the proposal is.

PN3322

MS FAWCETT: It's what they say in the order but it's not what they say in the associated correspondence.

PN3323

THE COMMISSIONER: Well, if they didn't do 50/50 they would be breaching the order, wouldn't they?

PN3324

MS FAWCETT: Well, that may be the case. However, they may say, but in the covering letter we said we weren't going to do 50/50 to start with, so we're not breaching the order.

PN3325

THE COMMISSIONER: The covering letter doesn't form part of the order.

PN3326

MS FAWCETT: Well, if the company's position is 50/50 split, we're happy with that, Commissioner. Those are the three issues that we have seen as a barrier to reaching agreement. We hope that maybe we can resolve them today.

PN3327

THE COMMISSIONER: Yes. Mr Pels?

PN3328

MR PELS: Yes, thank you, Commissioner. Commissioner, I think that the company's draft order is pretty much unequivocal in a sense, or is as close as the company can get to meeting or reaching - or meeting the requirements of your decision. The company has been quite prescriptive in respect of the duties and the break up of the duties, the 50/50 split and obviously they do reserve their right in regard to, if there's changes in the operational requirements or shift requirements, obviously that can be done as it's always done, in consultation with employees.

PN3329

The only other thing that the company would seek to include in any order issued by the Commission is that the order would only have a life of three months, and that is, as you've indicated, Commissioner, that things could change. The fact is that requirements of the company at any stage may need flexibility or movement with employees or changes generally, because if there isn't a time limit on the order as such, then it's suggests that indefinitely Mr Arcuri will receive privileges or entitlements beyond any other employee. That he will always be guaranteed a job in the warehouse of a 50/50 split and that things will never change.

PN3330

So we would think a reasonable time for this order - - -

PN3331

THE COMMISSIONER: I understand that.

PN3332

MR PELS: If the order doesn't have a finite life, then Mr Arcuri and his representative can simply say that this job must remain indefinitely, if this has been offered to him.

PN3333

THE COMMISSIONER: What are you suggesting? That it won't?

PN3334

MR PELS: Well, as you indicated before, there's no guarantee - - -

PN3335

THE COMMISSIONER: But you can just - the position is - we've gone through all of this process where the company has acted wrongly for reasons that I understand, that you know, I have found to have been wrong. I've given the company an opportunity to correct that situation in the decision. The company can then, after three months from what I'm hearing, proceed to take it out on Mr Arcuri and shaft him and put him into some job that - I mean, you're suggesting you can put him into a job lower than 3(a).

PN3336

MR PELS: No. I'm just saying that circumstances could change operationally for any reason.

PN3337

THE COMMISSIONER: And so you'll put him on night shift?

PN3338

MR PELS: Well, as you indicated, then he would argue, like any other employee, for friendly reasons or whatever, they'd object to that. So he'd still have his rights, he'd still have all his rights in regard to, if they sought to put him back into the inspection job and after three months, then quite rightly he would be here saying this is unfair and you would say, well, I issue new orders or
whatever - - -

PN3339

THE COMMISSIONER: No, but that would depend on what the terms of the new - if any new agreement comes into place and that's another matter and we'll deal with it.

PN3340

MR PELS: Well, that's right. That's another issue, of course, the enterprise agreement, whether there's likely to be changes, and that's another reason that things could change, enterprise agreements, whatever. What we're saying is, it doesn't prejudice Mr Arcuri's rights in regard to bases of discrimination on family reasons or any other reasons. The matter can't be brought back - - -

PN3341

THE COMMISSIONER: No, I understand that.

PN3342

MR PELS: The point is that the company - - -

PN3343

THE COMMISSIONER: I would have thought that you'd have to vary the order either by virtue of the enterprise agreement. If you get a new enterprise agreement and that enterprise agreement has consequences for Mr Arcuri's position, well that would clearly override the order.

PN3344

MR PELS: Well, even if there's no change and the company seeks to - - -

PN3345

THE COMMISSIONER: Well, if the company seeks to shaft him, then they're not going to get away with it by avoiding this order. Give me a practical example of what you're talking about.

PN3346

MR PELS: Well, I think the company has indicated they've purchased another business. If there's a requirement to re-organise staff or to change or rotate or change staff for whatever reason, operational, to meet a downturn in business or any other reason, they still have to go through any consultation and - - -

PN3347

THE COMMISSIONER: Like they have in the past.

PN3348

MR PELS: Well, they have, they went through consultation - well, they won't need to go through all that again.

PN3349

THE COMMISSIONER: No, they didn't go to the union. I would have thought that if you want Mr Arcuri - if you want to shift Mr Arcuri you're going to have to have to get his agreement.

PN3350

MR PELS: Yes, and in accordance with - - -

PN3351

THE COMMISSIONER: Or override it by virtue of enterprise agreement. I mean - - -

PN3352

MR PELS: So the order stays indefinitely?

PN3353

THE COMMISSIONER: Well, that's the case with Commission orders, isn't it? It's the exception not the rule. I mean I'm quite happy to put a three month time limit on it, but then the Act comes into play and says it remains in force until it's replaced.

PN3354

MR PELS: Yes.

PN3355

THE COMMISSIONER: Or otherwise varied.

PN3356

MR PELS: We're happy with that.

PN3357

THE COMMISSIONER: I've got no argument with that.

PN3358

MR PELS: The other indication is that - - -

PN3359

THE COMMISSIONER: I mean, nothing is forever, is it?

PN3360

MR PELS: No, well, that's right. We understand that. It just means that the company has met its requirements under the order which it's doing in good faith and in accordance with your decision. After that period of time, well, things can change.

PN3361

THE COMMISSIONER: No, they can only change if the order is varied either by implication or by direct variation. I mean, the order will be varied by implication if Mr Arcuri accepted another job. There's no suggestion that he stays in this job if he's offered the job as Manager at Wangaratta. He's not required - he's got to reject that just because of this order.

PN3362

MR PELS: Well, for example, if his old job became available at Wilson's for example.

PN3363

THE COMMISSIONER: Yes, and he accepted that, then the order would be varied by implication.

PN3364

MR PELS: Yes, or if he didn't accept and there was a dispute, we'd follow the dispute procedure.

PN3365

THE COMMISSIONER: Yes. I can't imagine why he wouldn't accept it, but never mind.

PN3366

MR PELS: The other part to the order we indicate that the company in its draft has met the requirements under your decision, that therefore there is no - we don't agree with the reference that there's an offence under appendix B or the fact that appendix B will apply. It may be that there might be a qualifying note that says that if the company does not comply with the order or doesn't accede to the order, then appendix B may apply, but the company has a concern about the union's draft where it says that they've - - -

PN3367

THE COMMISSIONER: Well, I'm really looking at your draft.

PN3368

MR PELS: Yes.

PN3369

THE COMMISSIONER: I'm trying to understand why that's unacceptable to the union.

PN3370

MR PELS: So we propose to change that the order would have - - -

PN3371

THE COMMISSIONER: I mean, paragraph 4 of their order simply - I mean, there's agreement that the proposed position, or the position is one that's equivalent to one that's described in paragraph 2.

PN3372

MR PELS: Yes.

PN3373

THE COMMISSIONER: I mean, what's the position on the ground at the moment? Is that the position he's working in, or is he still working on the - - -

PN3374

MR PELS: No, he's still working - well, because the union haven't agreed to the terms the company have offered he hasn't had the opportunity to do training and move on, which is probably frustrating him as well as everyone else.

PN3375

THE COMMISSIONER: Look, I'd rather concentrate on your order, it seems to me to be more specific. Let me ask a question here. The position will entail a 50/50 split between. Now, over what period of time? A 50/50 split on a weekly basis or a daily basis or on a monthly basis or an annual basis?

PN3376

MR PELS: A daily basis?

PN3377

THE COMMISSIONER: What, so he works half the day in - - -

PN3378

MS CLARKE: It will depend on production requirements but it's anticipated in the mornings he'll probably be down in final and then in the afternoon down in despatch, unless we've got our sensors or something on those lines.

PN3379

THE COMMISSIONER: Now, but it's going to be better, given that there's the training part involved, that it works out to be 50/50 over a longer period of time, doesn't it?

PN3380

MR PELS: The important thing, he will be trained the skill level of 3A, be paid that and his duties will follow.

PN3381

THE COMMISSIONER: But there's no doubt about him meeting that skill level in the despatch receiving area.

PN3382

MR PELS: That's right.

PN3383

THE COMMISSIONER: The problem is in following inspection, he will undertake some training.

PN3384

MR PELS: But we would say that would be consistent with his skills - - -

PN3385

THE COMMISSIONER: But that training would be full time or would be on that half a day working - - -

PN3386

MR PELS: Whilst he's in the warehouse - - -

PN3387

THE COMMISSIONER: So it's only on the 50/50, so he'd still be 50/50 even when he's undertaken the training?

PN3388

MR PELS: Yes.

PN3389

THE COMMISSIONER: Well, that seems to get rid of that problem. Okay. That position, I am correct, am I, that the position as detailed in item 1 is a day shift position?

PN3390

MR PELS: Yes.

PN3391

THE COMMISSIONER: Yes, right. So if we amend yours so that the item 1 reads:

PN3392

Mr Arcuri's position will be a day shift.

PN3393

So amending item 1, so it reads, "Mr Arcuri's position will be a day shift position as detailed below."

PN3394

MR PELS: Yes.

PN3395

THE COMMISSIONER: Two, as it reads. Three, as it reads. I don't like four. But anyhow, take four out, take five out. This order will come into effect, how soon? I mean, I hope that meets all your objections, does it, Ms Fawcett?

PN3396

MS FAWCETT: Could I have a brief moment to respond to the proposition of the three month duration of the order? Other than that, yes, it does.

PN3397

THE COMMISSIONER: I mean, whether it's three months, six months, 12 months, the reality is that under the Act it stay in force until it's replaced.

PN3398

MS FAWCETT: If that's the case, then I'm satisfied. I can just think of examples such as section 127 orders where they are for a fixed duration after which time they no longer apply to the parties. I want to make sure - - -

PN3399

THE COMMISSIONER: I would apply words to that effect. How soon do you want to start, Mr Arcuri?

PN3400

MR ARCURI: As soon as possible, your Honour.

PN3401

MR PELS: Immediately, Commissioner.

PN3402

THE COMMISSIONER: From 1 February 2006 and remain in force for a period of three months. That means it continues.

PN3403

MS FAWCETT: Provided that the intention is that the order continue, we're satisfied with that. I'm just concerned that it might be read to mean - - -

PN3404

THE COMMISSIONER: Have a look at the section of the Act. It talks about orders and times. It says that you've got to give them a fixed term. They remain in force until they're replaced.

PN3405

MS FAWCETT: Thank you, Commissioner, yes.

PN3406

THE COMMISSIONER: Now the wording of 127 orders specifically says, "and shall have no effect after that date." Now, I haven't quoted that order here.

PN3407

MS FAWCETT: If that's the case, I'm satisfied.

PN3408

THE COMMISSIONER: So that meets the three issues, does it?

PN3409

MS FAWCETT: It does, Commissioner.

PN3410

THE COMMISSIONER: I propose to issue an order in the terms that I described before but I'll just go through it again. The order is essentially that written by the employer with the following amendment. In the first line of paragraph 1 that will now read, "Mr Rob Arcuri's position will be a day shift position as detailed below." And then all of the words contained in item 1. Item 2 as it stands, item 3 as it stands, items 4 and 5 are deleted and there will be a phrase or a paragraph, a separate paragraph which is headed - sorry. Beside paragraph 1 there will be a capital A, then there will be a paragraph, capital B, "This order will come into effect from the 1st day of February 2006 and will remain in force for a period of three months." That order will be issued in the next day or so. I so order. So it will be issued in written form. That resolves that. So the proceedings in that matter are adjourned, hopefully forever.

<ADJOURNED INDEFINITELY [10.07AM]