AG2008/1112, Transcript of Proceedings [2008] AIRCTrans 406 (29 July 2008)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 18796-1

SENIOR DEPUTY PRESIDENT O’CALLAGHAN

AG2008/1112

cl.2A(1)(b) Sch. 7 - Appl’n for an order to vary pre-reform cert. agt.
Application by Rural City of Murray Bridge
(AG2008/1112)

ADELAIDE

3.30PM, MONDAY, 14 JULY 2008

PN1

MR D WADE: I appear on behalf of the Rural City of Murray Bridge.

PN2

MR G HENDERSON: I appear on behalf of the Australian Workers Union with MR P POLAK.

PN3

THE SENIOR DEPUTY PRESIDENT: I can advise the parties that I've considered both the information attached to the application, which has been provided in support of it and the application itself. There's an immediate couple of issues that arise, one of which I can probably put your minds at rest about, and one of which you're going to need to satisfy me on.

PN4

Section 2A of schedule 7 provides the capacity for the Commission to both extend the nominal expiry date of an agreement and vary the terms of the agreement. There's a common question that arises from parties about what constitutes a variation of an agreement and what constitutes a new agreement. I think the Act is fairly clear in that regard in that it doesn't define a variation, such that a substantial scope exists to modify the vast majority of agreement provisions and still characterise the modifications as a variation.

PN5

The scope of matters that are covered in the varied agreement doesn't cause me any great deal of difficulty at all but there are a couple of provisions that cause me some concern. It might be best if I outline those concerns now at the outset and then perhaps leave the question of what you want to tell me about those provisions, for you folks to ponder upon for a moment.

PN6

The first issue that arises goes to the proposed variation to clause 5 and this purports to establish that you've got a new agreement. It's an issue that I think might well be overcome by the wording in any order that I might issue. In effect, you don't have a new agreement, you have a variation to an agreement. As I've said, notwithstanding the words in your proposed clause 5, the form of an order might be able to overcome that issue.

PN7

The second issue that I have goes to the pay increases that are proposed and I wonder whether the parties would be in a position to provide me with some specific information relative to perhaps a pay schedule in that regard. I'm required to look at those rates of pay in contrast to - or as a package in contrast to the existing pay scales and award. The proposed clause 21 simply talks about an across the board increase of 5 per cent. What causes me a degree of confusion is the proposed clause 21.4 which talks about current rates and the incorporation of supplementary payment to the service increments. I'm just a little unclear as to what the parties actually are talking about in terms of wage increases there.

PN8

The provision that causes me greatest difficulty and one that I would be particularly keen on hearing from the parties about is the local area work agreement provision in clause 29. To be clear, I'm not altogether sure that this is a problem that can be overcome but I'm happy to hear from the parties. The concern that I have in this regard is that if I understand it correctly, this particular provision has been put to employees and has been endorsed by employees.

PN9

The provision purports to say that the terms and conditions of an individual or a group of employees can be further varied through a process that I would describe as the LAWA process, that is the local area workplace agreement process. It further purports that a LAWA will be negotiated with either an individual, presumably, or a work group and the collective bargaining committee and that any local area workplace agreement will be ratified by the Commission as a variation to this agreement.

PN10

To be blunt, that's where I ran into my first serious set of difficulties because I'm not sure the Act gives the Commission any capacity to make that sort of variation. The variation power is prescribed in clause 2A of schedule 7, begs the issue of whether variations can be revisited on multiple occasions.

PN11

The second issue that then arises is the question of whether, if the employer reached an agreement with either an individual or a discrete group of employees and then sought to put that arrangement into effect so as to provide for, let's say for example, a wage increase for a particular group of employees that would be something that would be endorsed only by that group of employees and not by the entirety of the employees covered by the agreement. Even if the Commission had the power to consider a second round variation, I'm not sure of the basis upon which it could do that if only a limited number of employees voted on the agreement.

PN12

The final concern under that heading relates to the proposed clause 29.6. Once again I'm not at all sure of the capacity available to the Commission to vary the agreement so as to establish that provision as having any real effect. Those questions are questions that the parties may well be able to answer for me but they are, with particular emphasis on that clause 29, of a nature that caused me some concern about the basis upon which employees voted to endorse this agreement. If the capacity to make those sorts of changes is not there, then I'm unsure as to how I should regard the integrity of the vote.

PN13

The final issue that I will raise with the parties goes to my understanding that on the basis of the statutory declarations provided to me, the parties have reached agreement but I'm not sure I've actually got anything that documents that in the form of signed authorisation of the agreement. That might be simply a question that you could resolve for me, that is signed authorisation of the agreement in its varied form.

PN14

Mr Wade, I've had a number of these variation agreements. Given that I do recall some years ago having some debate with you about what you could or couldn't have in an agreement, I must say I felt a substantial pang of what in this month I can probably refer to as Catholic guilt that I should raise these issues. It's the first time that I've had a question about a variation agreement, but I thought it best to outline those concerns to you. As I've indicated, the only potential showstopper that I can see there is clause 29 but it does cause me some substantial concern.

PN15

Do you want to have a chance to have a quick talk with Mr Henderson before we go too much further?

PN16

MR WADE: A few minutes.

PN17

THE SENIOR DEPUTY PRESIDENT: If I adjourn the matter for five minutes or so to let you have that discussion, you can simply let my associate know when you're ready to reconvene. Have you got any questions of me about the issues that I've raised, before we go too much further?

PN18

MR HENDERSON: Senior Deputy President, do you not have a schedule of the pay rates?

PN19

THE SENIOR DEPUTY PRESIDENT: Yes, I do. The question I've got for you there fundamentally goes to the extent to which - or how I should regard the proposed vary clause 21.4, Mr Henderson. I've got an attractive coloured schedule there. As I said the only potential showstopper that I can see that can't be answered relatively easily by the parties is that local area workplace agreement provision and the extent to which that creates problems by itself and secondly, goes to the integrity of the approval vote.

PN20

I shall leave the matter for you folks to ponder on for the next few minutes.

<SHORT ADJOURNMENT [3.42PM]
<RESUMED [3.54PM]

PN21

THE SENIOR DEPUTY PRESIDENT: Who has the honours?

PN22

MR WADE: Senior Deputy President, perhaps we should allude to those areas of your concern first of all and put everyone's mind at rest. In respect of clause 5 where you raised concerns regarding the wording, the parties have agreed that the wording should be varied to state that:

PN23

This agreement being the varied agreement, will commence from the first pay period.

PN24

We're adding the words "being the varied agreement". We thought that would satisfy the Commission's concern in that area and recognise the fact that we are dealing with a variation to an agreement.

PN25

In respect of clause 21.4, we do apologise for the fact that I did not include the current rates, as indicated in clause 21.4 and will be quite pleased to present to the Commission as an exhibit the rates of the previous agreement which actually do contain the rates, which are the current rates at this point in time, as of the first pay period from 1 April 2007. These are the current pay rates and we appreciate that the Commission would recognise and include them in the document and they will give the area where clause 21.4 is referring.

PN26

THE SENIOR DEPUTY PRESIDENT: Continue, Mr Wade.

PN27

MR WADE: In respect to clause 29, the local area work agreement, the parties have discussed the matter and considered removing the aspect of ratification by the Australian Industrial Relations Commission, but after further discussion the parties have come to the conclusion that the local work area agreement was one that was initiated by the employer due to local circumstances where employees were seeking changes to their employment situation. At this point in time, rather than prejudice the ratification of this agreement, the parties have agreed to remove clause 29.

PN28

The parties also believe, sir, that there's no question of integrity of vote or integrity of the agreement because this clause was an initiative of the employer of the employees. This clause was explained to the employees as a method to assist in basically coping with local area changes to various conditions that may occur over a period of time. Both parties have agreed that the changes need not be those that require the Commission's assistance and they could be handled in the local area between the union, the collective bargaining committee and any employees concerned.

PN29

On that basis, sir, we realise that clause is not required to be within the agreement but in particular we realise that as it is an employer initiated clause, then we don't see where the agreement would suffer any integrity or the vote of the employees will be diminished of suffer integrity due to the fact that it is an employer initiated clause.

PN30

That's all I have to say on that matter, sir. If the Commission could assist us in this matter, we would appreciate it.

PN31

THE SENIOR DEPUTY PRESIDENT: On all three issues, Mr Wade, if I'm hearing you correctly, you're saying I've got a capacity to change the document that the employees voted on. Where do I get that capacity? Where do I get that power from, what part of the Act? You see, on what you've told me, if the agreement was put back to employees and all three changes were incorporated in the document that was put to employees and a valid majority of those employees genuinely agreed to the variation of the agreement in that changed form, there would appear to be no question, or no question in my mind, but the issue that's arising on what you're telling me is one of what power I've got to in effect vary the agreement in a way which is different from that which employees voted on.

PN32

That comes back to this new clause 2A of schedule 7 and I don't see any power for me to act in a unilateral fashion, even though it may make commonsense, so as to vary the agreement in any way different to that which employees voted on. I'm not necessarily suggesting you need to make a new application. I can waive all of those sort of provisions but I'm struggling with what power I've got under the Act to make a unilateral variation to something that employees voted on.

PN33

MR WADE: With all due respect, the first one, clause 5, is basically a wording change.

PN34

THE SENIOR DEPUTY PRESIDENT: I understand that.

PN35

MR WADE: A clarification and that, I think, would have no impact on the genuine nature of the fact that the employees genuinely agreed to change an agreement. Because that wording wasn't clear enough, there's no substantive change to what they genuinely believed to be, and that was an agreement was to be varied.

PN36

THE SENIOR DEPUTY PRESIDENT: I understand that perfectly. Let me put the dilemma I've got to you in this way. If the Commission has the power to make a unilateral variation to an agreement, then I might be tempted to look at the proposed clause 21.1 which says, I think, with the greatest respect to the parties who wrote it in fairly convoluted terms, that once the Commission approved the varied agreement, the 5 per cent pay increase will be backdated to 1 April 2008. I might look at that and say that doesn't say what I think it means to say very clearly.

PN37

I don't think there's any capacity for me to make unilateral changes to the agreement so as to correct the grammar or indeed any other error in the agreement because the Act simply doesn't give me that power. I can't go through the agreement and say, let's change this clause to make it a bit clearer, or in this case eliminate a particular clause. The Act appears to me to make it clear that the choice open to the Commission is either to extend or vary these pre-reform agreements but to do so on the basis that the pre-reform agreement in its varied form has been endorsed by employees. Absent that sort of endorsement by employees, I'm struggling with what power I've got to change a single word that you folks write.

PN38

MR WADE: I appreciate your situation, Senior Deputy President. Let's go back to the beginning in clause 5. Actually, we know what we mean by clause 5.

PN39

THE SENIOR DEPUTY PRESIDENT: As I said I don't think clause 5 is a showstopper because I think I can address that in any order that I issue. The normal from of order that I'd issue would say something like, "This order shall come into force from 14 July 2008 and remain in force until 13 July 2011" which establishes that the agreement in its varied form takes effect from today and operates for another three years. That, as an order, addresses the confusion that seems to be inherent in your clause 5.

PN40

MR WADE: Indeed, sir, that would address it.

PN41

THE SENIOR DEPUTY PRESIDENT: Whilst it's probably not ideal, I don't think that the wording in clause 5 necessarily precludes my endorsement of your varied agreement but once you go beyond that to the exclusion of a proposed clause, being clause 29, I don't think the Act gives me a licence to do that unless employees have voted on the agreement in that form.

PN42

MR WADE: Sir, there are two aspects of this I'd like to address, the first one just to get clause 21.4 out of the way, regarding the rates. I believe that's not a difficulty either because that can be actually settled by the accepting of the exhibit regarding the rates. What we come down to - - -

PN43

THE SENIOR DEPUTY PRESIDENT: Let me clarify that. Should I take it then that 21.4 should be read such that I should have regard to the wages schedule for the agreement number 5 on the basis that the 5 per cent increase intended to apply from 1 April 2008, under this variation agreement, is simply added to the rates in this wages schedule - - -

PN44

MR WADE: Which are rates in the wages schedule.

PN45

THE SENIOR DEPUTY PRESIDENT: - - - and any supplementary payments or service increments are simply incorporated in the wages that are set out in this schedule of wages for the former agreement.

PN46

MR WADE: That's right, sir, except that that is simply a particularly - keeps out of that situation and allows some of the - an increase in clause 20 of the allowances. Otherwise, sir, what you say is correct. That's how it should be adjusted.

PN47

THE SENIOR DEPUTY PRESIDENT: Sorry, let me go back to clause 20. I'm just not sure I'm understanding what you're telling me.

PN48

MR WADE: You mentioned supplementary payments and service agreements and increments and I figured I might as well cover clause 20 while I was there, saying there are certain payments, allowances which we have - - -

PN49

THE SENIOR DEPUTY PRESIDENT: I see, but clause 20 isn't being changed by reason of this variation agreement.

PN50

MR WADE: Not at all. I agree with the Commission's interpretation of that and would appreciate the Commission interpret it that way.

PN51

THE SENIOR DEPUTY PRESIDENT: Yes, I can apply that. That means that for the purposes of the - there's so many no disadvantage tests nowadays - for the purpose of the overall no disadvantage test that I'm required to apply, I'm simply applying the rates in the agreement number 5, plus 5 per cent and contrasting those as a package under the terms of this agreement with the provisions of the standard relative to this award.

PN52

MR WADE: Yes, which brings us back to clause 29. As I was saying before, sir, the object of the parties was to ensure that there could be adjustments at the local level that reflected the needs of the local area, in particular the Rural City of Murray Bridge. The Commission appears to be concerned with the second part of clause 29.3 where all LAWAs are to be ratified with the Australian Industrial Relations Commission. I've also over the years, sir, had award conditions which have been unenforceable and some have been tried to be enforced. We would like the Commission to view this that the parties did agree that the LAWAs would be negotiated with the work group and the collective bargaining committee.

PN53

The collective bargaining committee constituted workers from all the work groups, including a full time paid union official. I would like the Commission to understand that nothing would be agreed to without the agreement of the collective bargaining committee. Whether the Commission can ratify it or not, that is something which we would perhaps have to come to on the day itself, if it had to come to the Commission to be ratified or the parties may agree that that step was not necessary and the union, indeed, sir, may agree with the employer and with the employees concerned that it was a local area arrangement that didn't need to come to the Commission itself.

PN54

What I'm saying, sir, in many ways is that like in clause 29.6, if the Commission actually ratified this agreement in total and the Commission was concerned perhaps of its powers to adjust or to actually ratify a LAWA, then what I'm saying, sir, the parties rather than bringing the Commission to that position in the future, we'd probably choose not to go that way and to make a local area adjustment, either by exchange of letters of some nature to ensure that what the employees sought, the employees actually gained.

PN55

This was brought in, sir, by the employer on the basis that in the past employees have asked for certain changes, like changes to hours which were outside the normal spread of hours, that suited their situation and that certain job at that time. and the employer would like that opportunity for the employees to be able to choose certain hours and conditions of work outside the norm as they have done in the past, which is why the employer included this LAWA into the agreement. The object was that the agreement would be reached at a local level between the employee or a group of employees concerned with the collective bargaining committee and that included representatives from every group of employees, including the full time paid union official.

PN56

There would be very little scope, sir, for one employee group to either seek conditions better than the overall terms and conditions of the agreement because they would be seeking a vote amongst their own people who would not be receiving that benefit and also seeking ratification from the full time paid union official which I'm sure, sir, would be seeking to ensure that the majority of employees would still be in the situation of not being disadvantaged. That was not the object of the LAWA and is one we would put safeguards in there.

PN57

We placed a further safeguard in there - actually I placed a further safeguard in there not realising that the Commission may not be able to vary a variation to the agreement, on the basis that if people were - if someone needed to feel that there was a further endorsement of an arrangement which the employees have agreed themselves at that level, at the shop floor level, then perhaps the Commission would have that place to go.

PN58

By leaving that clause in there, those sentences in there, leaving that clause 29.6 in there, it doesn't take away from the genuine agreement that's been reached that employees can have the opportunity to change a certain condition of their work for a period of time as long as the collective bargaining committee agree - and we're talking about 44 employees here, Senior Deputy President, we're not talking about thousands - as long as the collective bargaining committee agree and as long as the union official agrees.

PN59

I feel myself, sir, with the relationship that we have with the Australian Workers Union and the relationship that we have with the employees in general, that this is all the safeguard that's really required.

PN60

THE SENIOR DEPUTY PRESIDENT: Mr Wade, I must say I'm now somewhat confused. Let me make it clear, I'm certainly not questioning the genuineness of the intention of the parties. There's no question about that. The issues that I've raised relative to clause 29 go to whether - when the employees voted on this proposed variation, they were, as I read it, being invited to vote on a package proposal where certain parts of that package may not now be deliverable. They go to the extent to which you might be able to consider a variation to this agreement that would apply to one or a small group of people that would only be voted on by those employees in contrast to other decisions of the Commission under the
pre-Work Choices legislation which indicated quite clearly that a variation to the agreement required the vote of a majority of all of the employees covered by it.

PN61

The second question that I'm raising goes to the extent to which the Commission can, once again, vary the agreement if the parties want to change it, having done so under clause 2A of schedule 7, and on that basis I thought you were proposing to me that I could excise clause 29 from the agreement. If that's the case, then I'm saying to you that you'll need to establish what authority the Act gives to me to do that.

PN62

Having listened carefully to you, I'm not sure you're now saying that and you might be suggesting that I could leave clause 29 in there and simply work on the basis of the assurances you've given me. If that latter proposition is correct, then again you'd need to tell me what power there is under the Act to rely on those sort of assurances. You see, the old pre-Work Choices legislation had a capacity in, I think, section 170LV for the Commission to accept undertakings. I don't see anything of an equivalent nature to that provision in schedule 2A.

PN63

I need some clarification from you as to, first of all, what it is you're putting to me that I should do about clause 29 and secondly, depending on the answer to that, where I derive the power to do whatever it is you want me to do relative to it. I need to make it clear, I'm not trying to trip you up but you're asking me to give this varied agreement the force of law and I'm obligated to try to do so properly.

PN64

MR WADE: I understand that, sir. Initially, when you mentioned the fact of removing clause 29 from the agreement, that would be the situation, I would think, of us actually having to go back and go through the process again. I know that would probably not be something supported too much by the employees. The second aspect is that the local - - -

PN65

THE SENIOR DEPUTY PRESIDENT: We could try to make it as quick and as simple as we possibly could.

PN66

MR WADE: Yes, we could indeed. The second aspect is that if the thing was left as it is, then rather than reach the point where there's one aspect that cannot be ratified by the Commission, then so be it. There have been times in the past where there have been clauses in the award that have been basically unenforceable. If there's any kind of disagreement, if there's any problem, any dispute, they were settled - that came from that at all, we still have our clause 26, disputes settlement procedure, which allows us to address any kind of difficulty that may occur in the Commission itself.

PN67

What I'm saying to you, sir, is that with the genuine camaraderie we have here today, and understanding the employees and the intent of this agreement, as we do understand it, having negotiated it, the fact that those words are in there does not necessarily mean that they will be actually enforced, that the parties won't necessarily seek to have the LAWA ratified by the Australian Industrial Relations Commission. It's only an option that we would perhaps utilise if we needed to, but one which we certainly don't see in a practical sense of being one that we will bring to the Commission. Purely an option, sir.

PN68

At any rate, clause 26 would tend to cover any kind of disputes that may occur, the object being, sir, that the employer and the employees agree that there are times, there are occasions, there are situations in which a person's employment differs because the job they are doing differs from that of the majority. The object is to allow that employee or group of employees the opportunity to work in that work pattern that they wish to undertake with the consent of the collective bargaining committee, the full time paid union official and the employer.

PN69

I feel, sir, we have enough safeguards in there. The Commission is not particularly endorsing or ratifying something which is totally unenforceable to something which at this point in time, sir, hasn't been tested. In all probability, in all practicality, we wouldn't see that as being tested. We come from a rural council, sir, 44 employees. We know all of them by name. When they want to do something, they come and talk to us about doing it. It's not a situation in our council in particular, where we have this bureaucracy that's occurring. We just want to be able to put into legality something which I guess we do anyway.

PN70

THE SENIOR DEPUTY PRESIDENT: Mr Wade, I only wish I could accept that assurance from every employer, such that they would not have any industrial disputes, but I understand what you're saying.

PN71

MR WADE: In this case in particular, sir, it's an agreement which, if we do have to carry on, 44 employees were offered to vote, were given an opportunity to vote. 39 employees actually did vote and we had 39 affirmative so the employees are fully aware of the goodwill and the genuineness that all parties have expressed in this agreement - as per the agreement. As I said, clause 26 is one which everyone can fall back on if there is any dispute to the application of the agreement or parts thereof. If the Commission pleases.

PN72

THE SENIOR DEPUTY PRESIDENT: Mr Henderson, do you want to say anything to me on this issue?

PN73

MR HENDERSON: I agree with David that we can use this clause as a - to go around specific arrangements but if the President sees fit, then we need to go back and have another vote on the agreement and remove that clause in its entirety.

PN74

THE SENIOR DEPUTY PRESIDENT: Section 2A of schedule 7 does establish a discretion available to the Commission. I've listened carefully to the advice that particularly Mr Wade has provided to me. Having raised a number of questions about the agreement, I am concerned that clause 5 is phrased in such a way that it purports to do something that is probably not intended, but as I've indicated to the parties, the strict legal intent of the variation of the agreement is such that that issue can be addressed in the form of an order to be issued.

PN75

I'm satisfied that the agreement, when contrasted with the combination of the award and the standard meets the prerequisite requirements of clause 2A(2)(c). In relation to clause 29, though, I once again take an account of the intention of the parties and I have absolutely no doubt that the parties were genuine in this regard but I'm not able to approve the agreement - or not prepared to approve the agreement in its varied form with that particular provision in that particular form.

PN76

It seems to me that it purports to do something that the Commission is not able to do and as such, creates the very real potential for employees to misunderstand and misconstrue the agreement. I have noted that that issue could potentially be addressed, if it arose, by reference of a dispute to the Commission but it seems to me that a far more appropriate approach would be to get the parties to go back again to correct that document in whichever form they saw fit to do so.

PN77

That would require a further vote by employees on the agreement variations. It might be an opportunity to correct the phraseology of clause 5 and it's a vote that would need to occur consistent with the provisions of the Act. I certainly wouldn't require an altogether new application. I wouldn't require a new set of statutory declarations. I'll waive any requirement in the rules for that. Can I suggest that it might be appropriate for the variation to be signed by the parties and provided to me.

PN78

Mr Wade, I'm aware that you and Mr Polak have come down from Murray Bridge. I'd be quite happy to ask my associate to see whether we could organise a further hearing in a couple of weeks' time by way of video link or, for that matter, a telephone link, if that was more convenient. I'll do everything I possibly can to try to facilitate the exercise, but it does seem to me that it's necessary that the agreement in its varied form should operate in a fashion which is consistent with the requirements of the Act and the proposed clause 29 in its present form doesn't meet that requirement. The only other issue is a question of timing and that is such that I'd be happy to once again ask my associate to see whether we can organise a time as soon as possible after that minimum 14 day requirement is met.

PN79

I'm not prepared to make the variation to the agreement in the form sought today. Mr Wade, is there anything further? I realise I probably haven't fulfilled your expectations today but I can't take it too much further.

PN80

MR WADE: I think we've enjoyed the trip anyway so therefore, we'd enjoy coming back. I thought it wasn't 14 days, I thought it was seven days.

PN81

THE SENIOR DEPUTY PRESIDENT: I'd need to check that. I don't have my pre-reform version of the Act.

PN82

MR WADE: Actually, sir, I was under the impression that the Act actually failed to mention a time of that and most people accepted seven days as being the most practical time.

PN83

THE SENIOR DEPUTY PRESIDENT: My associate is going to get me that pre-reform version of the Act which might help answer that question. Mr Wade, I note also, perhaps whilst that's happening, that the 2006 agreement was certified or considered by way of what I used to refer to as an E hearing. On that basis, information was provided to me in and electronic form. That perhaps gives us the opportunity to even further simplify the process. If that is more convenient to the parties, I'd be happy to consider the application in an amended form on the basis of information both the employer and the AWU provided to me in an electronic form.

PN84

You'd need to make sure that that addressed the requirements of that clause 2A but it might in effect eliminate the need for any further hearing and further expedite the matter. I'm open to fit in with the parties in that regard. It would mean that once you'd completed the process that we'll deal with in a moment, both parties might provide to me and to each other an email confirming the position, together with an attachment that contained signature endorsing the variation in its approved form and information relative to the endorsement of that variation by a valid majority of employees. Once I received that information I could consider that and hopefully avoid the need for any form of hearing at all. I simply put it to you for consideration and it might be a simple way of addressing the dilemma that I've identified.

PN85

MR WADE: If the Commission pleases, what you're saying basically is that if we go through the process and we achieve another vote, as long as the Commission is aware what the voting was for, and that's the actual variation to the 2005 agreement, that variation has been sent to you as well as emails from the union and from the employer ratifying that the variation is true and correct, along with a copy of the record of the actual vote itself, that would suffice to move the matter on.

PN86

THE SENIOR DEPUTY PRESIDENT: Yes, Mr Wade. The 2006 agreement reflected an application made pursuant to section 170LS of the pre-reform Act. Section 170LR specified that:

PN87

The agreement must be approved by a valid majority of the persons employed at the time whose employment will be subject to the agreement.

PN88

It continued to say:

PN89

The employer must take reasonable steps to ensure that at least 14 days before any approval is given all persons either have or have ready access to the agreement in writing; before any approval is given the terms of the agreement are explained to all of the persons.

PN90

I think that probably answers your question, particularly given that subsection (4) of the new clause 2A provides a reference back to the pre-reform provisions of the Act so you will need to give employees that 14 day notice. That means that if the parties choose, perhaps after discussing the options that I've given you, to pursue the email approach, I look forward to receiving something from you in just over a fortnight. If you prefer a hearing, then either talk to my associate after this hearing and we will organise an appropriate day or alternatively, contact her in the next couple of days and she'll organise that accordingly. Anything further, Mr Wade?

PN91

MR WADE: No, sir. Thank you for your efforts and help and assistance in this regard. Even though Mr Polak and I would probably enjoy coming down again and see the rain, which we thoroughly enjoyed on the freeway, I think the employees would prefer probably to have an exchange of letters and emails to make sure the matter is finalised as soon as possible.

PN92

THE SENIOR DEPUTY PRESIDENT: Just don't have an argument on the way down, Mr Wade. Mr Henderson?

PN93

MR HENDERSON: I'm quite happy, Senior Deputy President, to have an email conference if that's easier.

PN94

THE SENIOR DEPUTY PRESIDENT: That's a matter for you and Mr Wade to work out. Just let my associate know. Mr Polak, you've been sitting there very patiently. As an employee representative it occurs to me that you might get some questions from some of your fellow employees about what went on today. Can I extend to you the opportunity to ask me for any clarification of the matters we've talked about. You don't have to, but I just want to give you that opportunity.

PN95

MR POLAK: No, I think I'm pretty clear on what's going on.

PN96

THE SENIOR DEPUTY PRESIDENT: I'll adjourn the matter accordingly.

<ADJOURNED INDEFINITELY [4.34PM]