AG2009/20477, Transcript of Proceedings [2010] FWATrans 352 (16 March 2010)

TRANSCRIPT OF PROCEEDINGS

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Fair Work Act 2009 25054-1

COMMISSIONER CAMBRIDGE

AG2009/20477

s.185 - Application for approval of a single-enterprise agreement

Application by Margin Brothers Pty Ltd
(AG2009/20477)





Sydney

11.03AM, TUESDAY, 2 MARCH 2010

PN1

THE COMMISSIONER: Thank you. On record. Thank you. Yes. Can I have the appearances in the matter please.

PN2

MS A. GRANT: Commissioner, my name is Grant, initial A, solicitor. I seek leave to appear for the applicant in this matter, Margin Brothers Pty Ltd. The applicant's representative, Mr Matthew Farrer, due to exceptional circumstances was unable to attend to this hearing today, however, he is available by telephone should I need to contact him this morning. Thank you, Commissioner, for kindly excusing Mr Farrer's attendance due to these pressing family circumstances. Also with me today is my colleague, MS R. PETROVSKI.

PN3

THE COMMISSIONER: Yes. Thank you. Well, the purpose of the proceeding is to provide you with an opportunity to put whatever material you want before the tribunal in respect of the application for approval. For the record I think I should indicate that I think my office provided a document some time ago which set out some aspects of apparent concern and that that related to some of what are referred to as pre-approval procedural issues and also aspects of the agreement, and then we received, thank you, a response dated 5 February 2010 which went to those various issues and I have that communication. So is there anything further that is proposed in respect of the application?

PN4

MS GRANT: Well, Commissioner, apart from those written submissions on each of those procedural issues in relation to the pre-approval process and obviously the elements relating to the agreement that you brought to my attention, I would submit that the agreement complies with all the requirements of the act and that it provides a net advantage to the employees covered. The proposed enterprise agreement will not reduce the aggregate earnings per hour or per week as the case may be of existing employees, assuming that similar rosters and hours are agreed and worked by employees to those worked prior to the agreement's commencement.

PN5

The rates in the agreement have been specifically calculated to accommodate the average weekly working patterns of employees covered by this agreement and as specified in clause 8.2 of the agreement the employer is required to roster employees fairly and equitably by rotating the allocation of weekend hours for example, thereby ensuring that employees will not be financially disadvantaged under the agreement as compared to the award.

PN6

Pursuant to schedule 7 part 2 item 4 subsection (1) of the transitional act, an enterprise agreement passes the no-disadvantage test if Fair Work Australia is satisfied that the agreement does not or would not result on balance in a reduction in the overall terms and conditions of employment of the employees who are to be covered by this agreement. We strongly contend that an on balance fair compensation application has been made by the applicant within this agreement in accordance with the legislation.

PN7

THE COMMISSIONER: Yes. I suppose it's an unusual proceeding in that there isn't a contrary opponent at the bar table in all of this and that often does merge of course. But perhaps for my benefit what I might do is just try to clarify some of the issues that in large part have been the subject of the written response that's been provided just to clarify some particular points of detail in that. Do you have the document of 5 February that - - -

PN8

MS GRANT: I do. That was submitted to you?

PN9

THE COMMISSIONER: Yes.

PN10

MS GRANT: Yes, I do.

PN11

THE COMMISSIONER: It might just be - because this will help me if I just briefly run through a few things in order to try and clarify some of this material. If we start and just work through this.

PN12

MS GRANT: Sure.

PN13

THE COMMISSIONER: In terms of the pre-approval procedures and in answer to the sort of broad issue that was identified in the material coming from my offie, a response has been provided and this is I take it - are you the author of this document?

PN14

MS GRANT: I am, Commissioner, yes.

PN15

THE COMMISSIONER: Yes. If we go through the first point, the first point related to steps that the employer took regarding employees who were under the age of 21. If we just look at that.

PN16

MS GRANT: Yes.

PN17

THE COMMISSIONER: Were you involved in the meetings that are mentioned there?

PN18

MS GRANT: No, I was not, Commissioner. No. Mr Farrer has instructed me as to that detail provided in that written response as to the staff meetings he held with his employees and of course those under 21 years of age pursuant to section 185 - sorry, 180 subsection (5) of the act.

PN19

THE COMMISSIONER: Yes.

PN20

MS GRANT: So from that written response, Commissioner, I would like to say that the first initial staff meeting that was held with employees in relation to explaining the terms of the agreement, the date that was provided in the written submission to you of Monday, 16 November, is actually incorrect. That was my error. It's actually Wednesday, 25 November 2009. That was the initial staff meeting held with employees where the employer went through the agreement and explaining the terms of the agreement to ensure compliance with that section from the act.

PN21

THE COMMISSIONER: But what I'm clarifying here is that the material provided here under your hand is by way of instructions essentially that you've taken from Mr Farrer.

PN22

MS GRANT: That's correct, yes.

PN23

THE COMMISSIONER: Does that relate to all of the material in the document?

PN24

MS GRANT: It does in relation to certainly the procedural aspects of the agreement as to what the employer did in explaining the agreement to the employees, and also obviously your next point of concern in relation to the number of employees who voted on the agreement. Certainly in relation to clauses within the agreement, there was issues raised by yourself concerning certain clauses within the agreement, in which case I referred you to different - - -

PN25

THE COMMISSIONER: Yes. We'll get onto that in a moment.

PN26

MS GRANT: Yes. Certainly.

PN27

THE COMMISSIONER: You see one potential difficulty here is, and it would be remiss of me not to raise this - but what I really have is your submission about what you say occurred, although that comes from another person.

PN28

MS GRANT: That's correct. As you know, the form 17 employees' declaration also detailed a response to this particular issue relating to section 180 subsection (5) which explained that there were staff meetings held with employees.

PN29

THE COMMISSIONER: I understand that, but you note - - -

PN30

MS GRANT: Yes.

PN31

THE COMMISSIONER: I'm sure as a lawyer you will understand the difference between a letter that's sent to me and someone who makes a statutory declaration and what can and can't be treated as a proper basis for evidence upon which to make a determination.

PN32

MS GRANT: Yes, I - obviously. Yes.

PN33

THE COMMISSIONER: You see one of the potential dilemmas here - and I'm not saying it's necessarily fatal to this application but it's one of the concerns that we endeavoured to identify so that there could be an opportunity to address this. For instance if we look at the second concern that was raised about what appeared to be the number of people who - well, they were invalid votes - but it says here they weren't invalid, they just didn't vote.

PN34

MS GRANT: That's correct. Yes.

PN35

THE COMMISSIONER: There's enough people that didn't vote to change the outcome of the ballot, isn't there.

PN36

MS GRANT: That's correct. There were 10 employees who voted on this agreement, nine approved the agreement, one employee did not. All votes however were valid votes. There was no invalid votes cast at this secret ballot. As I mention in the written submissions, we submit that the employer having complied with all the requirements of section 180 subsections (2), (3), (5), 181 subsection (2), 182 subsection (1) of the act, encouraged all employees to participate in the secret ballot and provided all employees with a reasonable opportunity to cast a vote. It was simply the choice of these - - -

PN37

THE COMMISSIONER: You see this is the difficulty I have. I don't know how that was done. If the number of votes couldn't - I mean I'm just looking at the sort of notion of a ballot irregularity. If the number of people who didn't vote couldn't have changed the outcome, then I probably would say, "Well" - and I see this in many of the others that I deal with. 680 employees, 500 vote, 380 in favour and, you know, you say, "Well, even if we got all the others that didn't vote," or whatever happened, you couldn't get enough noes in all of that process to change the outcome. My concern here would be just putting no great a point to it than this: if those that didn't vote voted no, together with the one person that did vote no, then we wouldn't have an agreement.

PN38

MS GRANT: Hypothetically yes, that's correct, Commissioner. However section 182 of the act says that agreement is made when a majority of those employees who cast a valid vote approve the agreement. It doesn't contemplate employees who, whilst they were given a reasonable opportunity to vote and certainly encouraged to vote - it doesn't contemplate obviously their choice - simply their choice not to vote on the agreement. I submit that out of the 10 employees who voted there was certainly a majority approval of this agreement and therefore it was made in accordance with section 182 of the act.

PN39

THE COMMISSIONER: I know that section and I know what it says. But what I'm saying to you is that I have to be satisfied I think in respect of section 188 about the agreement having been generally agreed to by the employees covered by the agreement and one potential concern, and I don't put it any greater than that, one potential concern here is that in the absence of detailed evidence as to just how this process occurred, I'm told, "Well, we gave everyone an opportunity," and it says here some people apparently just chose not to cast a vote. But enough people did that, when combined with the one person who voted no, to change the outcome. I suppose that's something I've got to contemplate.

PN40

MS GRANT: Yes, Commissioner. I can understand your concern, however I do submit that the law actually doesn't require all employees to vote on the agreement. It's as long as they are given a reasonable opportunity to vote, which they all were given a reasonable opportunity to vote in accordance with the requirements under the act. It was really the choice of these employees not to participate in the secret ballot which they all knew was to occur on that particular day.

PN41

THE COMMISSIONER: See how can you make that submission?

PN42

MS GRANT: Well, I can make the submission based on my instruction from Mr Farrer. Furthermore, the employer declaration details are - if I can take you to that, Commissioner. 2.3 under part 2, Requirements for Approval, talks about:

PN43

The steps taken by the employer at least seven days prior to the start of the voting process to ensure that relevant employees were given or had access to the written text of the agreement.

PN44

As it states there, Commissioner, the proposed enterprise agreement, the how, when and where document and company policies and procedures were available for employees to access from the staff communication folder and the staff noticeboard. Furthermore, in terms of notifying all the relevant employees of the time and place at which the vote was occur, at least seven days before the start of the voting process the how, when and where document was available for all employees to access from the staff noticeboard, and at least seven days before the start of the voting process the employer also verbally told each employee of the time and place at which the vote was to occur. I won't go into detail there, Commissioner, but it actually states what the how, when and where document explained in relation to the date, location, time and those details in relation to the secret ballot that was to take place on Thursday, 17 December.

PN45

THE COMMISSIONER: Who was the returning officer?

PN46

MS GRANT: The returning officer was one of the employees to be covered by the agreement. From the statement by the employee returning officer, Commissioner, I understand it was Matthew Carroll, who was one of the employees to be covered by the agreement.

PN47

THE COMMISSIONER: Matthew Carroll is the person who appears to have signed on behalf of the employees.

PN48

MS GRANT: That's correct, and was also the returning officer.

PN49

THE COMMISSIONER: Sorry to go backwards a bit, but it was dealt with around the other way in the declaration documentation, although I think that's changed with the recent alterations. But if we just go back to the under 21 years of age issue. The majority of the employees here are under 21. That's correct, isn't it?

PN50

MS GRANT: Yes. 17 of the 23 employees are under 21 years of age.

PN51

THE COMMISSIONER: Was there any process for parental involvement in any of this?

PN52

MS GRANT: I haven't been instructed on that particular issue. Mr Farrer has made it clear that the employees - he, obviously knowing that 17 out of the 23 employees were junior employees under 21 years of age, at these staff meetings really assured that they all were provided with sufficient explanation of the terms of the agreement and that they each understood the effect of those terms. That is why he actually held the second staff meeting on Wednesday, 9 December, in order to ensure that much to the dislike of these employees turning up to a second staff meeting, I am instructed that he wanted to ensure that they each understood each term of the agreement per that particular section from the act.

PN53

THE COMMISSIONER: All right. If we perhaps just briefly touch upon some of the matters contained in the actual document just for the purposes of some clarification I suppose. I think the first issue deals with clause 5.1. Now, do I understand that in summary what is put there is that although that clause contains a one-day notice of intention to terminate, notwithstanding what you say about the no-disadvantage test at the time the employer is going to disregard that.

PN54

MS GRANT: No, that's not - - -

PN55

THE COMMISSIONER: No?

PN56

MS GRANT: No. So although the agreement was made during the bridging period as I state there, and pursuant to schedule 4 part 2 item 4 of the transitional act, those sections from the Workplace Relations Act relating to notice of termination provisions and certainly section 638 relating to the exclusion of those notice of termination provisions apply to this agreement because it was made during the bridging period and because there is that continued application of the Workplace - this particular section of the Workplace Relations Act during the bridging period.

PN57

Now, despite the fact that the agreement was made during the bridging period and therefore has to comply with these sections from the Workplace Relations Act, the employer nevertheless must ensure compliance with the notice of termination provisions pursuant to section 117 of the act from 1 January. So the employer recognises that obligation to ensure compliance with those changes under the Fair Work Act that commence from 1 January.

PN58

THE COMMISSIONER: But does that mean it won't be one day's notice, it will be a week?

PN59

MS GRANT: That's correct, yes.

PN60

THE COMMISSIONER: So we're going to have a document which in effect says one day but a week will apply.

PN61

MS GRANT: That's correct. But the employer, as I said, is aware and will certainly recognise its obligation to ensure that one week's notice for a probationary employee under the act from 1 January.

PN62

THE COMMISSIONER: So the one day's notice provision in 5.1 is going to be disregarded?

PN63

MS GRANT: That's correct, yes.

PN64

THE COMMISSIONER: All right. In relation to the next matter, 5.3, your submission there is that - I might have, and this wouldn't be the first time I've misunderstood the provisions of a particular clause in an industrial instrument. But it seems to suggest to me that in the absence of any other clause specifying the minimum engagement that casuals can be engaged for a minimum term of one hour.

PN65

MS GRANT: As I state in those written submissions, Commissioner, we don't provide for work parameters within this agreement and that's something that I address later when we talk about clause 7 in particular. It was really to provide for the purpose of completeness a definition of a casual employee who is exempt from those notice provisions.

PN66

THE COMMISSIONER: If I accept that what you're saying is wrong and that I'm misguided by that, what would the minimum engagement for a person be?

PN67

MS GRANT: We don't have minimum engagement.

PN68

THE COMMISSIONER: So you could engage me for 10 minutes?

PN69

MS GRANT: That could potentially be the case, but that certainly wouldn't be the intention of that particular clause. It's really just to provide for completeness the definition of a casual employee.

PN70

THE COMMISSIONER: So in fact my concern about there being only a minimum engagement of one hour arises incorrectly from that provision, but in fact there is no minimum engagement term at all anywhere if this instrument is approved?

PN71

MS GRANT: That's correct because there is no work parameters in that strict sense under the award within this agreement. If you would like to - would you like to talk about the hours of work and how - I mean the ordinary hours under this agreement is no more than - is 38 hours in a week and any hours worked in excess of 38 hours in a week on average over 26 weeks is deemed as additional hours. Those are the work parameters essentially within this agreement. So in terms of the strict work parameters under the relevant award, no there is no minimum engagement for employees under this agreement.

PN72

THE COMMISSIONER: If we move to 5.4, how is it that 5.4.1 placitum (vi) doesn't have the effect of establishing that any employee not complying with the policy or procedure of the employer would be deemed to be guilty of serious misconduct?

PN73

MS GRANT: As I said in those written submissions, Commissioner, the employee's failure to comply with policies and procedures of the employer would have to be wilful or deliberate, as stated at the beginning of clause 5.4.1 and in those circumstances would have to be deemed by the employer as being so serious that dismissal on the grounds of serious misconduct is appropriate. The clause is not intended to apply to employees who breach a policy or procedure of the employer that is not deemed to be wilful or deliberate and the employer recognises his obligations in relation to parts 3 to 1 and 3 to 2 of chapter 3 of the act and understands that the practical application of clause 5.4 needs to be consistent and compliant with these provisions of the act.

PN74

THE COMMISSIONER: All right. Well, perhaps then we could turn to the next matter, although it probably arises - in terms of going through the document it's an issue. You've got these classifications here. There's three classifications in your instrument, one, two and three. It says each employee is classified as assessed by the employer. Do I understand then that the employer retains complete discretion as to the classification of a particular employee?

PN75

MS GRANT: That's correct, and when we say, "Assessed by the employer," the employer would have to determine based on the employee's duties, roles and responsibilities and certainly level of experience as to what classification within clause 6 would be most appropriate.

PN76

THE COMMISSIONER: So there isn't the sort of traditional notion of a higher duties arrangement that might apply?

PN77

MS GRANT: No, Commissioner.

PN78

THE COMMISSIONER: A person could be asked to do the higher duties and the employer might just say, "Well, there's no obligation on me to pay you for that unless I decide to."

PN79

MS GRANT: Would that be on a regular basis, Commissioner, in that they would be working those higher duties on a regular basis or - - -

PN80

THE COMMISSIONER: Is there a specification for that somewhere which says if you work it for more than three hours in a day or five days in a year? Is there some specification?

PN81

MS GRANT: No, there isn't within this agreement.

PN82

THE COMMISSIONER: No.

PN83

MS GRANT: No.

PN84

THE COMMISSIONER: If we go then to probably one of the key provisions, the hours of work, and I think the no-disadvantage approach here relates to the comparison documentation. Is that right? When we look at the - I think there's a spreadsheet that's been included.

PN85

MS GRANT: Is that for the rate calculations attached to annexure A?

PN86

THE COMMISSIONER: Yes, I suppose - I guess it's - in the material that you provided, the question was raised about the fact that ordinary hours can be worked, essentially, at any time of the day or night or any day of the week.

PN87

MS GRANT: That's correct, yes.

PN88

THE COMMISSIONER: So there's no difference made between a person working at 2 am to a person working at 2 pm?

PN89

MS GRANT: No, there isn't. But in terms of the notice of damage test and ensuring the employees are compensated for those penalty periods, the rates have been calculated based on the average weekly working patterns of employees. So there has been an assessment based on the average weekly working patterns of employees to determine that if employees were working late night or weekend shifts, that their rates have been calculated in such a way to compensate employees for working those hours.

PN90

THE COMMISSIONER: So that takes us to the comparison document. So if I understand this proposition correctly, what you're saying is all those things about working at night, Saturday, Sunday, whenever it is, we factor into an hourly rate that we say will not provide any disadvantage.

PN91

MS GRANT: That's correct, yes.

PN92

THE COMMISSIONER: If we go to the first of these comparison documents, which look like they're taken from some sort of Excel spreadsheet or something - - -

PN93

MS GRANT: Yes.

PN94

THE COMMISSIONER: Just as an example, the first one relates to the unloaded level 1. Is that right?

PN95

MS GRANT: That's correct.

PN96

THE COMMISSIONER: Yes. Please help me because I want to make sure I'm reading this correctly. The left-hand side shows the award being applicable.

PN97

MS GRANT: That's correct. The award entitlements, that would be applicable, yes, on the left-hand side.

PN98

THE COMMISSIONER: So if we look at this, then - down the very bottom where your results are, in the box there, we've got a difference in the hourly award rate, $17.93?

PN99

MS GRANT: That's correct, yes.

PN100

THE COMMISSIONER: Under the, "Instrument if approved," $18.03.

PN101

MS GRANT: That's correct, yes. Excluding super, that's the box to look at there.

PN102

THE COMMISSIONER: So do I understand that the result of this is that you say the 10 cents an hour difference is the compensation for all of the night-time, Saturday time, all of the things - allowances for anything you can imagine?

PN103

MS GRANT: That's correct. I'll just say that under award - on the left-land side of that spreadsheet under "Award weekly work profile," what we've calculated here is an average weekly wage at $626.57. So that's looking at the average weekly working patterns, looking at the penalties that apply in the different penalty periods work as per the award or the reference instrument. Then added to that is the annual value of any applicable allowance or loading, which then takes us down the bottom to an annual salary, which is then converted to an hourly rate. So that's essentially how that calculator works.

PN104

THE COMMISSIONER: Yes, but I'm correct in saying that this approach generates, in this example, 10 cents an hour more for the loss of all of those penalties and all - everything else?

PN105

MS GRANT: Well, they're not lost, Commissioner, they're loaded into the rate.

PN106

THE COMMISSIONER: Well, however you want to describe it.

PN107

MS GRANT: Yes, they're certainly compensating - - -

PN108

THE COMMISSIONER: My compensation for not having overtime, or public holiday rates, penalty rates, my compensation for that is 10 cents an hour.

PN109

MS GRANT: No, there is an annual advantage in terms of the salary of $200 for this particular classification that we are looking at in this spreadsheet. I note that there is a $300 annual advantage for casuals under this agreement in terms of annualised salary.

PN110

THE COMMISSIONER: It still means it's 10 cents an hour though, doesn't it?

PN111

MS GRANT: When converted to an hourly rate, that's looking at the - one second, sorry, Commissioner.

PN112

THE COMMISSIONER: I think for the casuals, if it's the same thing, it's 16 cents an hour.

PN113

MS GRANT: Commissioner, I would like to point out that the base rate under the award for this particular classification is $15.84. As you can see, further to the top of this spreadsheet, $15.84 an hour. The $17.93, the hourly award rate excluding super down the bottom of the spreadsheet on the left-hand side, is really obviously that base rate with those - essentially loaded to compensate for those penalty periods, based on the average weekly working patterns, and obviously the annual value of any loading or allowance combined. So there is obviously a difference between the base rate - the award base rate off $15.84 and then the combined total there of 17.93 based on those calculations. I would like to reiterate that there is an annual advantage provided to employees under this agreement.

PN114

THE COMMISSIONER: But that's what I'm saying. Probably if you extrapolate the $200 or $300 figure back to the hours through the year, it will come, and I would think it should because the maths ought to hold up, to the 10 cents an hour difference.

PN115

MS GRANT: Yes, noting that $17.93 is the base rate from the award, loaded up to include based on the rosters the employees worked.

PN116

THE COMMISSIONER: Yes, I understand. What you're saying is that here's a person working under the award conditions, and here's where they would have wound up.

PN117

MS GRANT: With a loaded hourly rate, yes.

PN118

THE COMMISSIONER: This is applying the penalties that you say are applicable and so forth, even included one uniform allowance in there and so forth.

PN119

MS GRANT: Yes.

PN120

THE COMMISSIONER: There are a few other allowance that I note don't seem to have appeared, but we won't trouble ourselves too much about all that. I think there's a variety of other allowances that exist in the reference instrument which don't seem to have been included at any point.

PN121

MS GRANT: Because they're not applicable, Commissioner. The only applicable allowance that we have included is the uniform allowance.

PN122

THE COMMISSIONER: We might look at those in more detail if we have to but, in any event, what the individual would be saying is, "Assuming my roster is as maintained here, I'm better off by 10 cents an hour. If I was to, for instance - - -"

PN123

MS GRANT: But annually, obviously there's an annual advantage there of greater than - - -

PN124

THE COMMISSIONER: But, I mean, I might not work for a whole year. What if I'm asked to come in on a public holiday?

PN125

MS GRANT: Well, I note that there have been four public holidays loaded into this hourly rate, based on the average that employees work. So we're taking an average.

PN126

THE COMMISSIONER: So all I've got to do is be asked, in addition to my roster, when someone doesn't turn up on Easter Sunday, or something, to come in, can you help out, my rate doesn’t change because my roster and the calculations here were never factored in for that public holiday.

PN127

MS GRANT: I would like to say, Commissioner, that as specified in clause 8.2 of the agreement, the employer is required to roster employees in a fair and equitable way by rotating the allocation of weekend hours, as I stated previously, thereby ensuring no employees would be financially disadvantaged under this agreement when compared to the award. So that's a requirement imposed on the employer under this agreement. I would also like to reiterate, Commissioner, if I may, this is - the NDT is a point in time test, so it's really looking at whether or not the agreement passes the NDT as the agreement exists at test time, which is as per section 185 of the act when the application for approval was dealt with.

PN128

THE COMMISSIONER: I understand that.

PN129

MS GRANT: Yes.

PN130

THE COMMISSIONER: Now, I think in terms of clause 7.3, I think you are deleting the first sentence there?

PN131

MS GRANT: Give me one second, Commissioner. The employer is prepared to sign an undertaking if required, Commissioner, that the first sentence of clause 7.3 stating, "Penalties for working additional hours must be claimed by the employee in advance and in writing," to be void and of no effect. That was the proposed undertaking in the written submissions, Commissioner.

PN132

THE COMMISSIONER: Yes. Similarly, in respect of clause 7.4, you're suggesting that an undertaking would be provided to reword that clause?

PN133

MS GRANT: That's correct. The undertaking proposed is to remove the words, "Or agree," from this clause so that it reads as follows:

PN134

Notwithstanding clause 7.3, employees may request to work additional hours and be paid their ordinary hourly rate.

PN135

That would be the first sentence of that particular clause if amended by such undertaking.

PN136

THE COMMISSIONER: Yes. Now, clause 9 has a slight numbering problem. I think we've - - -

PN137

MS GRANT: It does, yes.

PN138

THE COMMISSIONER: - - - identified that. But can you explain to me why - as I understand it, if you receive the loaded hourly rate, then you're not entitled to payment for any annual leave or sick leave that you might take.

PN139

MS GRANT: That is correct, Commissioner, in that those employees who are paid a loaded hourly rate of pay, whilst entitled to take their accrued annual leave and certainly their sick leave entitlement, or sick carers leave entitlement, do not get paid for that annual leave or sick carers leave taken as their hourly rate of pay already compensates that paid entitlement. So essentially the loaded rate of pay within the agreement has been calculated in the same manner as the unloaded rate. However, the loaded rate has loaded in those paid annual leave and sick leave entitlements.

PN140

THE COMMISSIONER: Why isn't that the same as cashing it out?

PN141

MS GRANT: It's separate from cashing it out, Commissioner, because essentially when you cash out, say, annual leave, you're foregoing that entitlement, whereas with a loaded rate of pay, you're still entitled to take that accrued leave, it’s just that you don’t get paid for it at the time that you take it, because of your higher ordinary hourly rate of pay.

PN142

THE COMMISSIONER: But isn't, in a practical sense, the same thing likely to occur? The practical outcome is the same, isn't it? Or have I missed something?

PN143

MS GRANT: No, because if my - I submit, Commissioner, that when you cash out your annual leave entitlement, for example, you're really foregoing that entitlement completely. Certainly you're getting paid for it, you're cashing it out, but you're not entitled to take it. Whereas with a loaded rate of pay, you're entitled to take that annual leave or sick leave entitlement, so you're entitled to take the leave, it's just that your ordinary hourly rate has been loaded in such a way that you're already compensated for that entitlement.

PN144

THE COMMISSIONER: But the practical outcome is, under either approach, I decide to not take leave, either annual leave or sick leave, because I'm being paid for instead of taking the leave.

PN145

MS GRANT: But with the loaded hourly rate, you're still taking the leave - - -

PN146

THE COMMISSIONER: Well, it's a question of whether you're getting paid for it in each hour you work, or whether you just wait until the point in time in which it was going to accrue so you could take it, and then you just get the money and don't take the leave. I mean, it's just a question of when the money comes through. It's still money instead of leave, isn't it?

PN147

MS GRANT: Although you're still taking that accrued leave, it's just as I said, you don't get paid overtime - - -

PN148

THE COMMISSIONER: Well, I'm not taking it, I don’t want to take it because I want to keep working. I want the money.

PN149

MS GRANT: Well, that would be cashing it out. We submit, Commissioner, that they are different.

PN150

THE COMMISSIONER: Now, do I understand that clause 12 means that, in an example where I work on a public holiday, even if it wasn't one anticipated to be in my roster, as might have been developed in the spreadsheet document I still - it's just paid at ordinary time?

PN151

MS GRANT: That's correct. An average of four public holidays worked across all employees has been loaded into the rate of pay as explained previously about how the rates have been calculated. So it has envisaged obviously public holiday penalties being loaded in to the hourly rate of pay.

PN152

THE COMMISSIONER: So even if I worked six or seven public holidays it's just going to be said to be - well, not additional to those that were originally used in the calculation to determine the loaded up hourly rate?

PN153

MS GRANT: In response to that, Commissioner, I would say that - I would refer you back to clause 8.2 of the agreement that talks about rostering employees in a fair and equitable way and also to the fact that the agreement is to be tested at test time. So it doesn't envisage what may happen down the track, it's based on the current existing patterns of - working patterns and certainly the average of public holidays worked across all employees at the test time.

PN154

THE COMMISSIONER: Now, clause 13. Do you say that the instrument can - I might be completely wrong here but I understood that there was some legislation that was introduced by the Howard government that stipulated that employees could choose the superannuation fund that their payments were going to be made into to.

PN155

MS GRANT: Except, Commissioner, if it's under a workplace agreement which is what section 32C(6) of the Superannuation Guarantee Administration Act (1992) states, is that if it's not a choice - it's really up - the employee has the opportunity to have a choice of superannuation fund under a workplace agreement.

PN156

THE COMMISSIONER: But this workplace agreement is removing that choice. Is that what you're saying?

PN157

MS GRANT: Yes, that's correct.

PN158

THE COMMISSIONER: All right.

PN159

MS GRANT: Which is compliant with that section from that act.

PN160

THE COMMISSIONER: It doesn't breach the act?

PN161

MS GRANT: No.

PN162

THE COMMISSIONER: The act envisaged the prospects that an industrial instrument might remove employee choice?

PN163

MS GRANT: That's correct, yes.

PN164

THE COMMISSIONER: All right. Well, I think we don't probably need to go into the annual leave because we have dealt with the annual leave in terms of our discussion about the loading and the cashing out as we've just mentioned. So absences for sick leave, there are probably not likely to be many if you don't get paid so - because it's already in your hourly rate.

PN165

MS GRANT: If you are paid a loaded hour as a permanent employee?

PN166

THE COMMISSIONER: Yes. But if you are sick even if you don't get paid for the absence you're still required to produce a medical certificate or have I misunderstood this?

PN167

MS GRANT: That is correct if you're actually taking that sick leave entitlement then you still are required to produce a medical certificate.

PN168

THE COMMISSIONER: So even if you're not being paid as on that day?

PN169

MS GRANT: You mean if you are paid a loaded hour - - -

PN170

THE COMMISSIONER: Just if you're absent.

PN171

MS GRANT: It doesn't distinguish between those employees on an unloaded or loaded hourly rate - - -

PN172

THE COMMISSIONER: So even - you're on the loaded hourly rate, you want to take sick leave, although you're not going to get paid for it you're still going to produce - when I say, "Not going to get paid," you're not going to get paid for it on that day because you say it's already - - -

PN173

MS GRANT: The hourly rate - - -

PN174

THE COMMISSIONER: The hourly rate is adjusted for that. But you have still got to produce the sick leave - sick certificate?

PN175

MS GRANT: That's correct, yes.

PN176

THE COMMISSIONER: All right.

PN177

MS GRANT: They are expected to comply as I've said in my written submissions, Commissioner, with that requirement in clause 15.4.2.

PN178

THE COMMISSIONER: All right. I think we probably have exhausted the issues of clarification. The hourly rate and comparisons I think we've discussed and I think you have clarified a number of those things for me. I don't have the original document - I'm now on to the signature question.

PN179

MS GRANT: Right.

PN180

THE COMMISSIONER: Is the original document available?

PN181

MS GRANT: I think I may have a copy, Commissioner. Of the schedule B signature page of the agreement?

PN182

THE COMMISSIONER: Yes. That's not the original?

PN183

MS GRANT: No, it's a copy. I don't actually have the original with me I don't believe. Actually I may.

PN184

THE COMMISSIONER: Well, I have some serious doubts about this.

PN185

MS GRANT: Will I refer you to the statutory declaration that Mr Farrer - I submitted with the written submissions, Commissioner, in relation to that signature page and certainly that mark across the employee representative box? I note that within the statutory declaration Mr Farrer states that:

PN186

I marked with a line where the employee representative was to sign and their signature witnessed and that the line that is shown through the employee representative's signature was marked on the schedule B signature page before the employee representative signed and his signature witnessed.

PN187

THE COMMISSIONER: Well, I suppose it's a very peculiar way to put from the bottom left-hand corner to the top right-hand corner an unbroken line for the purposes of indicating where people should sign.

PN188

MS GRANT: That may be the case, Commissioner, but certainly that was Mr Farrer's account of providing a reason as to why there was a line there.

PN189

THE COMMISSIONER: I'm not an expert in these matters but over the course of the last 14 years I have on occasions been required to look in detail at markings, hand markings, signatures and similar things on documents and I have to say that when looking at this line on the original it seems to clearly go over the top of the capital C in "Carol" where printed and over the top of the "1" and part of the "2" in the "12th" where it's dated. It similarly seems to go over the top of the "R" in the signature of Suzanne Redmond and that - as I say, I'm not an expert but to be frank it just doesn't look like that line was there before those people marked the document.

PN190

MS GRANT: Apart from the statutory declaration provided from Mr Farrar, Commissioner, is there anything else that could either rectify or satisfy - - -

PN191

THE COMMISSIONER: No, thank you. You have been very kind and endured all of this and I thank you for all of that. Could I just - sorry, there are one or two other - sorry to jump back again, but just - the question of payment of wages, I couldn't find that. How and when do you get your wages?

PN192

MS GRANT: That's not specified within the content of this agreement as to the payment of wages in that sort of technical sense. I would have to seek instruction as to what Mr Farrar actually does in relation to that.

PN193

THE COMMISSIONER: Is there any maximum duration of work before you're entitled to having a bit of a break?

PN194

MS GRANT: Similarly to the work parameters set out within the relevant award, is that what you're referring to?

PN195

THE COMMISSIONER: The idea of a meal break is something that - - -

PN196

MS GRANT: A meal break, sorry? Is that what you - - -

PN197

THE COMMISSIONER: Well, that might be one thing. Usually after a recognised number of hours at work - - -

PN198

MS GRANT: Certainly, yes.

PN199

THE COMMISSIONER: - - - you can get a break.

PN200

MS GRANT: Yes, clause 24 provides for meal breaks and rest breaks.

PN201

THE COMMISSIONER: Meal breaks?

PN202

MS GRANT: Yes.

PN203

THE COMMISSIONER: Of five hours' duration? Yes, all right. But in terms of the total number of hours that could be worked in any one engagement there isn't a maximum.

PN204

MS GRANT: No, there is not, not as per the award, no, Commissioner. There are no work parameters - - -

PN205

THE COMMISSIONER: Yes, so you can be - - -

PN206

MS GRANT: - - - in that sense.

PN207

THE COMMISSIONER: In reality here your engagement could be as short as 10 minutes or as long as 14 hours?

PN208

MS GRANT: Yes, that is correct. I would like to point out however - one moment. That in relation to the work parameters within this agreement we submit that ordinary hours not exceeding 38 hours per week on average over 26 weeks provide both the employer and employee with greater flexibility and rostering and averaging ordinary hours of work when compared to the relevant award. I would also like to submit that since the commencement of the act there have been numerous approvals of enterprise agreements that do not contain work parameters as prescribed by the award. I can give you matter numbers if you like, Commissioner, in relation to that precedent.

PN209

THE COMMISSIONER: I think you included some matter numbers in your document or something - - -

PN210

MS GRANT: Within the written submissions.

PN211

THE COMMISSIONER: Within your written submissions, yes.

PN212

MS GRANT: So whilst we appreciate that the decision as to whether or not to approve a particular enterprise agreement rests with the commissioner to whom the agreement is allocated or assigned, we note that there is significant precedent for this clause 7 within the agreement in the absence of work parameters as per the award.

PN213

THE COMMISSIONER: Is there anything further you wanted to say or put to the tribunal at all?

PN214

MS GRANT: No, Commissioner.

PN215

THE COMMISSIONER: Thank you for that. I propose to reserve decision in the matter and the proceedings are adjourned accordingly.

<ADJOURNED INDEFINITELY [12.00PM]