AG2010/3729, Transcript of Proceedings [2010] FWATrans 490 (22 March 2010)

TRANSCRIPT OF PROCEEDINGS

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Fair Work Act 2009 25040-2

COMMISSIONER LARKIN

AG2010/3729

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

Mr Noel Symons
and
Consec Security Pty Ltd T/A Consec Security Pty Ltd
(AG2010/3729)





Sydney

10.15 AM, MONDAY, 8 MARCH 2010

PN1

THE COMMISSIONER: Could I take appearances, please. Who is appearing on the file?

PN2

MR N. HILF: I am. Nicholas Hilf, for Consec Security.

PN3

THE COMMISSIONER: The matter has been called on to address the application in relation to approval of a single-enterprise agreement under section 185. The agreement was made prior to January this year, so therefore the agreement was made during the bridging period for the purpose of the no disadvantage test. On my understanding, the agreement operates in New South Wales.

PN4

MR HILF: And Victoria.

PN5

THE COMMISSIONER: And Victoria. I think you've nominated as the comparison document the Security Industry (State) Award, which is an award of the Industrial Relations Commission of New South Wales. There are a number of questions that I wish to raise with you and ask you to give me your submissions as to why the agreement should be approved. Now, the first thing is that I have on file that the application is made by a Noel Symons.

PN6

MR HILF: Yes, he's the employee representative.

PN7

THE COMMISSIONER: Right. Now, he is the bargaining representative elected by employees?

PN8

MR HILF: That's correct.

PN9

THE COMMISSIONER: Do you have the authorisation - was there written authorisation that appointed Mr Symons as the representative?

PN10

MR HILF: Yes.

PN11

THE COMMISSIONER: Do you have copies of that?

PN12

MR HILF: I don't have it. I wasn't aware I needed it.

PN13

THE COMMISSIONER: Well, we don't actually say so, but I would like to sight it.

PN14

MR HILF: Okay. I can provide that.

PN15

THE COMMISSIONER: And what is Mr Symons' position?

PN16

MR HILF: He's a security guard, level 3.

PN17

THE COMMISSIONER: Now, correspondence was received from you, Mr Hilf. I believe you had spoken to my associate. You provided a spreadsheet on the hours.

PN18

MR HILF: That's correct.

PN19

THE COMMISSIONER: You also indicated in your correspondence of 8 February – you addressed the issue of annual leave. These are shift workers, of course, because they are security guards.

PN20

MR HILF: Yes.

PN21

THE COMMISSIONER: There's no definition in the agreement of a shift worker. The annual leave provisions provide for four weeks, and in brackets in the agreement, 192 hours. I raise that because you're referring to that in your correspondence of 8 February, so what you're saying is in a sense that would be the five weeks.

PN22

MR HILF: Yes. Our understanding was with shift workers it's five weeks at 38 hours, which gives you 190 hours. Our four weeks as per roster gives 192, which is in excess of that.

PN23

THE COMMISSIONER: But it's still not five weeks though, is it?

PN24

MR HILF: Our IR consultant, who can't be here today - - -

PN25

THE COMMISSIONER: Sorry?

PN26

MR HILF: Our IR consultant who helped put this together, he's unavailable to attend today. His indication to us was five weeks was always calculated at 38 hours as a standard week.

PN27

THE COMMISSIONER: I think the award provides for the five weeks for shift workers and there's an annual leave loading of 17.5 per cent, or your paid your shifts.

PN28

MR HILF: Yes, they're paid as per their – as if they worked - - -

PN29

THE COMMISSIONER: Without opening the award at the moment, it would still be five weeks for a shift worker and either 17 and a half per cent annual leave loading or else the shifts that you would have worked, and whichever is the greater. I'll check that.

PN30

MR HILF: Yes.

PN31

THE COMMISSIONER: I will check that, but that was my – I won't open it now because there are other questions that I wish to raise with you. Now, as I said, the application has been by Mr Symons who you say is an elected representative of the employees concerned. I believe there are 73 employees, all security operators, and you'll forward in the authorisations from those employees for Mr Symons to be their bargaining representative. Then form F17 is the employer's declaration and, Mr Hilf, I believe you've signed that.

PN32

MR HILF: Yes, that's correct.

PN33

THE COMMISSIONER: And it was witnessed before a justice of the peace?

PN34

MR HILF: That's correct.

PN35

THE COMMISSIONER: Yes. Now, the correspondence of 8 February, the issue of the dispute-settling provision I presume was raised with you.

PN36

MR HILF: Yes.

PN37

THE COMMISSIONER: I don't know, but it has evidently been raised with you. In your correspondence you say that the union actually wanted that inserted in the agreement. The reason I ask that is because there's no union – from looking at the file, no union was involved in the bargaining.

PN38

MR HILF: Okay. What we did was after we had given it to our employees for discussion, as well, before we finalised it, some of the members of the union asked if the union could have some input - - -

PN39

THE COMMISSIONER: Sorry, step back. Sorry, say that to me again.

PN40

MR HILF: When we were putting it together, we were consulting with the employees and some of them wanted their union who represented them to have a look at it on their behalf, as well.

PN41

THE COMMISSIONER: Were employees provided with a notice in regard to their representative rights?

PN42

MR HILF: Yes, they were.

PN43

THE COMMISSIONER: So none of them had a union representing them, but they
asked - - -

PN44

MR HILF: If we could forward it on to the union for them to peruse it, so to speak.

PN45

THE COMMISSIONER: All right then. So you did that.

PN46

MR HILF: We did that, to the LHMU in Victoria; which was their industrial officer, Laura Stevens. They liked to have a few things inserted, which we did. We've had no problems with any of that. One of them was the consultation process, which is basically as they wanted.

PN47

THE COMMISSIONER: Sorry, say that to me again. One of them was - - -

PN48

MR HILF: The consultative process was verbatim virtually what they would like put in, which we did.

PN49

THE COMMISSIONER: You're not talking about consultation in regard to change at clause 36?

PN50

MR HILF: Sorry?

PN51

THE COMMISSIONER: You're still talking about the dispute-settling procedure?

PN52

MR HILF: The dispute-settlement – bear with me for one sec.

PN53

THE COMMISSIONER: You see, that's what you're saying on your email of 8 February, that the LHMU - - -

PN54

MR HILF: Yes.

PN55

THE COMMISSIONER: - - - sought this dispute-settling provision and that's why you inserted it. That's why I raised the question.

PN56

MR HILF: Okay. Which clause is that you're looking at, please?

PN57

THE COMMISSIONER: Well, your dispute-resolution procedure in your agreement.

PN58

MR HILF: I'm just trying to find it.

PN59

THE COMMISSIONER: It's clause 36, and so is the Consultation of Change clause 36, but we take it the consultation of change doesn't necessarily form part of the dispute-settling provision.

PN60

MR HILF: Yes, that is correct. The dispute resolution procedure. There was also input from our IR consultant, Chris Delaney, on that, as well.

PN61

THE COMMISSIONER: Now, it does provide for – well, it says the Australian Industrial Commission, but that would be now Fair Work Australia; to have an application before Fair Work Australia by either party for conciliation and/or arbitration. The first matter that I will raise with you is that then it provides an alternative, "By agreement between the parties, the matter may be brought before an accredited ADR practitioner." Now, under section 186(6) of the act, the requirements for a dispute-settling provision is that:

PN62

Fair Work Australia must be satisfied that the agreement includes a term that provides a procedure that requires or allows Fair Work Australia or another person who is independent of the employers, employees or employee organisations covered by the agreement -

PN63

now, this ABR practitioner, are they independent or would they be independent of the employer or the employees? My question is, who pays for their services?

PN64

MR HILF: Okay. They would be independent. That was the intention. I would say we would have to pay for their services.

PN65

THE COMMISSIONER: But you must have agreement between the parties. That would be the person in dispute and the employer.

PN66

MR HILF: Yes.

PN67

THE COMMISSIONER: The next part of section 186(6) is that –

PN68

to settle disputes about any matters arising under the agreement; and in relation to the National Employment Standards.

PN69

Now, the National Employment Standards commenced in January this year. Your dispute-settling provision, does it provide for Fair Work Australia or an independent person to settle disputes about matters arising under the agreement and in relation to the National Employment Standards?

PN70

MR HILF: I would say it does, by what's in there.

PN71

THE COMMISSIONER: Well, can you take me to it? That's why I asked you the question.

PN72

MR HILF: Okay. That would be page 25. It would be section (ii) and below, I believe.

PN73

THE COMMISSIONER: Where is that?

PN74

MR HILF: Beginning with, "The determining authority may."

PN75

THE COMMISSIONER: "Take evidence on oath."

PN76

MR HILF: And starting with (b) basically, from there down.

PN77

THE COMMISSIONER: That's just particular powers. Directions. Where does it say "settle disputes"? It does say, "In relation to a dispute arising under this agreement."

MR HILF: Yes.

PN78

THE COMMISSIONER: But it doesn't mention anything about "and in relation to the National Employment Standards".

PN79

MR HILF: Okay. So we're going to need to specify that then?

PN80

THE COMMISSIONER: Yes. The provisions of the act provide that we may take an undertaking in regard to particular aspects of an application. We could consider an undertaking in regard to the dispute-settling provision in relation to Fair Work Australia or the independent person – the provisions of clause 36 is to provide that they may settle a dispute not only about matters arising under the agreement, but also in relation to the National Employment Standards. Your clause provides for representation, your dispute-settling provision? Yes, "An employee may request representation at any stage of the procedure."

PN81

MR HILF: Yes.

PN82

THE COMMISSIONER: Now, the agreement on my understanding provides for an all-up rate.

PN83

MR HILF: Yes, that's correct.

PN84

THE COMMISSIONER: You provided a spreadsheet of the workings. They're 12-hour shifts. I think the award provides for the working of up to 10 hours. The rosters that you provided, on my understanding employees work an eight-week roster of 12-hour shifts.

PN85

MR HILF: Yes.

PN86

THE COMMISSIONER: Two days, two nights and four shifts off. The roster includes a provision for 32 hours' overtime.

PN87

MR HILF: That's correct.

PN88

THE COMMISSIONER: It's an all-up rate.

PN89

MR HILF: It is.

PN90

THE COMMISSIONER: The rate is for all workings.

PN91

MR HILF: Yes.

PN92

THE COMMISSIONER: For all public holidays.

PN93

MR HILF: Yes.

PN94

THE COMMISSIONER: For all allowances.

PN95

MR HILF: Yes.

PN96

THE COMMISSIONER: All penalties.

PN97

MR HILF: That's correct. It's rolled up completely.

PN98

THE COMMISSIONER: A composite rate. It also includes a provision for 32 hours' overtime.

PN99

MR HILF: That's correct.

PN100

THE COMMISSIONER: Then anything over that – the 32 hours' overtime is paid at the composite rate?

PN101

MR HILF: That 32 hours is worked into the rolled up rate. Additional hours above that, there's an additional rate - - -

PN102

THE COMMISSIONER: The 1.25 per cent, the additional rate.

PN103

MR HILF: Yes, 1.25 times 125 per cent.

PN104

THE COMMISSIONER: Yes. Well, it's one and a quarter.

PN105

MR HILF: Yes.

PN106

THE COMMISSIONER: That's for voluntary additional hours.

PN107

MR HILF: Overtime. That's correct.

PN108

THE COMMISSIONER: Which is over and above - - -

PN109

MR HILF: Their rostered shifts.

PN110

THE COMMISSIONER: - - - their rostered shifts. In a sense, those hours at the ordinary time rate in your agreement provides for the working of approximately 43 hours per week as opposed to 38.

PN111

MR HILF: It's 42.15 on average.

PN112

THE COMMISSIONER: On average.

PN113

MR HILF: 84.3 a fortnight.

PN114

THE COMMISSIONER: But it's approximately 43 hours ordinary. Then any overtime after that is paid at one and a quarter.

PN115

MR HILF: Times that base rate, yes.

PN116

THE COMMISSIONER: So the 32-hour overtime component, that is paid at - - -

PN117

MR HILF: The 32 hours - - -

PN118

THE COMMISSIONER: So it's not paid at 27.63 for a grade 1, just for example?

PN119

MR HILF: Just bear with me one second, please. I'll refer to a grade 3 because that's the base employment level.

PN120

THE COMMISSIONER: Well, I've done my calculations in looking at this - I've done them on the grade 1, but it doesn't matter what grade you look at it. It's just that we're talking about the same rate, that's all.

PN121

MR HILF: Yes.

PN122

THE COMMISSIONER: Whether at 22.10 for a grade 1 at normal hours or for the voluntary additional hours, 27.63.

PN123

MR HILF: Yes.

PN124

THE COMMISSIONER: That's just for the grade 1. It doesn't really

PN125

MR HILF: Okay.

PN126

THE COMMISSIONER: And then there is a higher duties allowance per hour. That's correct, isn't it?

PN127

MR HILF: That's correct.

PN128

THE COMMISSIONER: Yes. You need to answer, because we're recording, you see.

PN129

MR HILF: Sorry.

PN130

THE COMMISSIONER: So that's why you must answer, not just nod your head. So over your eight-week cycle, a grade 1 at 22.10 – a grade 1 paid for your eight-week cycle totals I think about 348 hours.

PN131

MR HILF: 336, I believe.

PN132

THE COMMISSIONER: So will that 336 hours – is a grade 1 paid 22.10 for that?

PN133

MR HILF: That rate is whatever hours they work on their normal roster, they'll be paid at that rate.

PN134

THE COMMISSIONER: So for the 336 hours or the 348 hours - - -

PN135

MR HILF: Their shift, as their two days, two nights and so on, they'll be paid that for the entirety of it.

PN136

THE COMMISSIONER: And it's only voluntary hours over that roster - - -

PN137

MR HILF: They'd get paid at the - - -

PN138

THE COMMISSIONER: - - - that this grade 1 gets 27.63?

PN139

MR HILF: That's correct.

PN140

THE COMMISSIONER: That would mean that a grade 1 employee working that eight-week roster would receive a total figure of approximately – and I don't necessarily have that figure, but it would be about $7000 gross, I'd say.

PN141

MR HILF: Yes. I don't have the figure, I'm afraid.

PN142

THE COMMISSIONER: All right. I have a concern about the rate. I have a concern about the composite rate. I was under the impression that those 32 hours' overtime that's incorporated into that eight-week roster would have been paid at 27.63 for a grade 1, but you're telling me it's paid at 22.10.

PN143

MR HILF: Sorry. I have misunderstood you. I don't know if you have a printout of the calculations we supplied. If you have the one that has got the average grade 3, it actually - - -

PN144

THE COMMISSIONER: No, I don't know what the average grade 3 - - -

PN145

MR HILF: Okay.

PN146

THE COMMISSIONER: I see. Wait a minute. That's the first one.

PN147

MR HILF: Yes.

PN148

THE COMMISSIONER: That didn't print out.

PN149

MR HILF: Okay.

PN150

THE COMMISSIONER: The second one is the average grade 5 hourly rate.

PN151

MR HILF: Okay.

PN152

THE COMMISSIONER: No, do the three, that's fine. I presume it's the first one.

PN153

MR HILF: It is. You actually see the overtime rate is actually 34.34. That's calculated into the rolled up rate.

PN154

THE COMMISSIONER: Where does it say overtime rate 34.34?

PN155

MR HILF: It's actually on the first page after the cover page where it breaks down the day rates, as per the award rates. Where it says, "Day, span, Saturday, Sunday, O/T," which is the abbreviation for "overtime" on the left side.

PN156

THE COMMISSIONER: No, not on the first sheet. Not on the first sheet it hasn't got that. On the second sheet, average grade 5 hourly rate, it has got, "O/T 36.10."

PN157

MR HILF: Yes, okay.

PN158

THE COMMISSIONER: But it hasn't on the first one.

PN159

MR HILF: You must be missing a page then, because there is one, but that rate there on the grade 5 - - -

PN160

THE COMMISSIONER: Would you send that again then, because if I haven't got the right information forwarded, how do I assess it?

PN161

MR HILF: It was in the Excel sheet I sent to you. It's all in one. There are actually five tabs to it.

PN162

THE COMMISSIONER: Just hold on for a moment. Yes, go on. Please explain this to me. My associate is checking to try and find the correct sheet for me.

PN163

MR HILF: Okay. Looking at the grade 5 one, for instance - - -

PN164

THE COMMISSIONER: All right. Let's do that.

PN165

MR HILF: If you look on the left-hand side in the column where it has got the rates and the days, it shows as per the award the day rate - - -

PN166

THE COMMISSIONER: Yes, 18.05.

PN167

MR HILF: 05, yes.

PN168

THE COMMISSIONER: Yes.

PN169

MR HILF: The span rate, which is 6 pm until 6 am; the Saturday rate; the Sunday rate; the O/T, which is overtime rate, which is what the overtime is calculated at. Now, that's not on the first page. That's for a standard week. On the second one - - -

PN170

THE COMMISSIONER: Well, wait a minute. These rates here are the award rates.

PN171

MR HILF: They're the award rates. That's correct.

PN172

THE COMMISSIONER: So this first one, average grade 1 hourly rate, including public holiday, 23.51.

PN173

MR HILF: That's correct.

PN174

THE COMMISSIONER: And that's based on the award.

PN175

MR HILF: That's based on the award. It's showing how we calculated the rolled up rate. There are actually two sheets to that. One is for a standard week, which is the first one.

PN176

THE COMMISSIONER: What do you mean by a standard week?

PN177

MR HILF: Without overtime. Then there's the second one - - -

PN178

THE COMMISSIONER: All right. So the first one is just ordinary hours.

PN179

MR HILF: They're just ordinary hours. That's correct.

PN180

THE COMMISSIONER: But your ordinary hours are your – approximately 43 hours per week.

PN181

MR HILF: That's correct.

PN182

THE COMMISSIONER: You say 42 point - - -

PN183

MR HILF: 42.14.

PN184

THE COMMISSIONER: Whatever it is, but let's say it's approximately 43 hours ordinary time per week.

PN185

MR HILF: That's correct.

PN186

THE COMMISSIONER: Those 43 hours for a grade 1 attract a figure of $22.10. Is that correct? I'm just asking you.

PN187

MR HILF: Sorry. I'm just going back - - -

PN188

THE COMMISSIONER: No, that's okay.

PN189

MR HILF: Yes.

PN190

THE COMMISSIONER: So when you say standard, you mean ordinary hours, but you mean ordinary hours at approximately 43 hours per week?

PN191

MR HILF: That's correct.

PN192

THE COMMISSIONER: Okay. All right then. So that first sheet you say is based on the standard hours.

PN193

MR HILF: Actually, no. I think I'm actually talking in cross-purposes here. These two sheets make up how we made the rolled up rate, looking at weeks. On the second sheet, if you've the grade 5 one - you'll see the first sheet only has Sundays. It doesn't have any overtime. It has got zero for the hours for overtime for the 36.10.

PN194

THE COMMISSIONER: No, I can't see any zeros at all. I don't know what you're talking about. Am I looking at the average grade 5 hourly rate sheet?

PN195

MR HILF: That's correct.

PN196

THE COMMISSIONER: All right.

PN197

MR HILF: Where you see the day rates above that - - -

PN198

THE COMMISSIONER: Yes. All right then. Day, Rate, Hours, Totals; they're the headings.

PN199

MR HILF: Yes.

PN200

THE COMMISSIONER: It's not very clear.

PN201

MR HILF: Okay.

PN202

THE COMMISSIONER: But I can see that now. Day, Rate, Hours, Total; they're the headings.

PN203

MR HILF: Yes. Now, if you see the zero for overtime.

PN204

THE COMMISSIONER: Under the totals?

PN205

MR HILF: Yes, on the hours side; to the right of the actual hourly rates.

PN206

THE COMMISSIONER: Yes, under the Hours column. Yes, zero.

PN207

MR HILF: Yes. If you flick to the second page - - -

PN208

THE COMMISSIONER: After this average grade 5 hourly rate page?

PN209

MR HILF: Yes, which shows the amount – this is on the eight-week roster where the public holiday rates and overtime is calculated into it.

PN210

THE COMMISSIONER: That sheet has got, "Total overtime per cycle 56." "Total hours, 360. Average 45," so does that mean an average of 45 hours per week?

PN211

MR HILF: That's only on a week that has a public holiday in it or an overtime.

PN212

THE COMMISSIONER: Is a grade 1 paid $22.10 for approximately 43 hours per week of work?

PN213

MR HILF: That's correct.

PN214

THE COMMISSIONER: Thank you. Anything over that 43 hours is paid at - - -

PN215

MR HILF: 27.63.

PN216

THE COMMISSIONER: For a grade 1; and that's reflective in your appendix B to the agreement?

PN217

MR HILF: That's correct.

PN218

THE COMMISSIONER: The voluntary additional hours over the 40 average, 43 hours per week, is paid at 27.63?

PN219

MR HILF: That's correct.

PN220

THE COMMISSIONER: And the 27.63, is that the one and a quarter overtime rate we discussed earlier?

PN221

MR HILF: That's correct. It's 1.25 times the rolled up base rate.

PN222

THE COMMISSIONER: These are security officers?

PN223

MR HILF: That's correct.

PN224

THE COMMISSIONER: They work 24/7? That's your operation; 24/7?

PN225

MR HILF: That's correct.

PN226

THE COMMISSIONER: How do you say that these rates, the ordinary rates leaving aside the voluntary additional rates, over an eight-week cycle - which I didn't even factor in public holidays at all - if they are working in accordance to the award for an eight-week cycle, 29 shifts, if you costed that under the award how do you say the agreement doesn't disadvantage them as opposed to the reference instrument? For example, the New South Wales Security Industry Award, the NAPSA.

PN227

MR HILF: On the working sheet that's provided, it shows the rates as per the award; how many hours are worked at them under the roster.

PN228

THE COMMISSIONER: All right. Show me where are the – I don't know, because it doesn't tell me exactly what I'm actually looking at. Where does it say the award rates?

PN229

MR HILF: It actually says, "Day rates," or day and the rate, on the left-hand side. It should be the second sheet.

PN230

THE COMMISSIONER: I see. 18.05, 21 - - -

PN231

MR HILF: That's correct, yes.

PN232

THE COMMISSIONER: 97.

PN233

MR HILF: 27.08, 36.10.

PN234

THE COMMISSIONER: Now, the 21.97, is that the night shift?

PN235

MR HILF: No. The New South Wales award has a span loading, which is the equivalent of an afternoon, which is six – actually, sorry, it is the night shift. I'm getting confused
between - - -

PN236

THE COMMISSIONER: Yes, it is, and it's 21.7 per cent.

PN237

MR HILF: Yes.

PN238

THE COMMISSIONER: On my understanding.

PN239

MR HILF: Yes, it's from 6 pm to 6 am.

PN240

THE COMMISSIONER: That's right. It's night. It's not permanent. Permanent night is 30 per cent.

PN241

MR HILF: That's correct.

PN242

THE COMMISSIONER: But if they work a night shift under the award, it's 21.7 per cent of their base.

PN243

MR HILF: That's correct.

PN244

THE COMMISSIONER: Now, this is your grade 5. Yes, the base rate for a grade 5 is 18.05. The night shift, if they work a night shift, it's $22 per hour. You've got 21 – well, I don't know – anyhow, it's $22 per hour. You've got 21.98, but, anyhow, leave that aside. Saturday, which is time and half, under the award is 27, and then Sunday or public holidays, 36 – no, Sundays are 36.10, which is 100 per cent for a grade 5. Public holidays are 150 and that's 45.10.

PN245

MR HILF: That's correct.

PN246

THE COMMISSIONER: Okay, so that's the award rates, you say.

PN247

MR HILF: Yes.

PN248

THE COMMISSIONER: And you've costed them. Public holidays per year, this document reflects 12.

PN249

MR HILF: That's correct.

PN250

THE COMMISSIONER: And your figure for that is 932.67.

PN251

MR HILF: That's correct. I'll just have to check that one. I believe that's actually the difference, but I haven't got the Excel sheet here. Obviously the workings out – so I can't tell just off this.

PN252

THE COMMISSIONER: Well, for me to satisfy myself that the agreement passes the no disadvantage test, you need to give me submissions in relation to that. Without even factoring in payments of public holidays, which is under the New South Wales NAPSA, public holidays range in a dollar figure depending on the grade from $41 up to $45. Without even factoring that in, if I do some very quick calculations of the eight-week cycle on a grade 1 where it would be ordinary hours – eight hours per day – and on the 12-hour shifts that means overtime, that's four hours depending on whether it's a night shift or a Saturday or Sunday, I come up with a figure for a grade 1 of just over $8000 for the cycle. I did a quick calculation, but I costed the agreement more favourably than I've just heard that it is, anyway, and it's short on my calculations.

PN253

MR HILF: Okay.

PN254

THE COMMISSIONER: So hence me calling it on to provide you with an opportunity to satisfy me – and we're talking about permanent employees at the moment. I haven't even tackled the casuals. We're talking about any permanent employees. This agreement at the moment just covers - - -

PN255

MR HILF: It actually covers casuals, as well. It says they'll be paid as per the state award.

PN256

THE COMMISSIONER: Yes. We'll get to casuals. So you've got a combination of the 73 employees. How many are casuals?

PN257

MR HILF: Currently 20-something, I believe.

PN258

THE COMMISSIONER: It's in the documents. It's in the application. I can look at it.

PN259

MR HILF: Yes.

PN260

THE COMMISSIONER: But I just thought off the top of your head you may have been able to advise me. In regard to the permanents, I have a real concern – and that's me crunching the numbers – on the dollar figures that you provide in the agreement, not necessarily how you calculated those figures of the ordinary normal hourly rate from $22 up to 24 approximately for your five grades. Without looking at that, on my calculations employees working the shifts that you're talking about, as we've already outlined, I cannot see that they wouldn't be disadvantaged with the all-up rate. So that's a concern I have and I need to put that to you. You can have a think about that and I'll give you an opportunity to convince me that permanent employees under this agreement would not be disadvantaged if the award – or the NAPSA, did not apply to them.

PN261

Also I still have a concern about the annual leave aspect of it, as well. I will check that against the reference instruments as nominated, but it still concerns me. Tell me about the situation with casuals. Sorry, I think you said to me that all your casuals - - -

PN262

MR HILF: Are paid as per the New South Wales award; the NAPSA.

PN263

THE COMMISSIONER: And what does that mean to me then? Under this agreement when a casual looks at this, what does a casual do? How do they know what - - -

PN264

MR HILF: They refer to the award.

PN265

THE COMMISSIONER: Just strictly the award?

PN266

MR HILF: Just strictly the award. For instance, on the first page of the Excel sheet we have sent you, it has the award.

PN267

THE COMMISSIONER: Is that what's being – yes. Why didn't I have that? Look, my apologies. I've just been provided with what you're talking about, which is that, isn't it?

PN268

MR HILF: That's correct.

PN269

THE COMMISSIONER: I've never sighted that before.

PN270

MR HILF: Okay.

PN271

THE COMMISSIONER: So hence when you were saying different things to me, there's no way in the world I understood what you were talking about. But what you're saying is the material you provided, the first page of the material you provided on 8 February, had rates of pay for the Security Industry (State) Award and you say this is based on the New South
Wales - - -

PN272

MR HILF: That is. That's correct. That's the casual rates on the bottom part where it says, "Casual employees."

PN273

THE COMMISSIONER: Yes. So on this sheet your first table is full-time and part-time, and then you've got another table which is casual employees.

PN274

MR HILF: That's correct.

PN275

THE COMMISSIONER: Okay, so this is what your casuals receive?

PN276

MR HILF: That's correct. That's as per the award. The second figure, which is highlighted - which might not be if yours isn't a colour printout - actually shows the rate with the annual leave rate inclusive, as well.

PN277

THE COMMISSIONER: The 1/12th?

PN278

MR HILF: Yes, that's correct.

PN279

THE COMMISSIONER: Yes, that's right, and you've based it on a casual loading of 15 per cent.

PN280

MR HILF: That's correct, as per the award.

PN281

THE COMMISSIONER: What's the situation with allowances with casuals?

PN282

MR HILF: Whatever allowances are due to them, they get paid as per the award or the NAPSA.

PN283

THE COMMISSIONER: So all provisions of the NAPSA apply to your casual employees?

PN284

MR HILF: That's correct.

PN285

THE COMMISSIONER: Except for the hours of work.

PN286

MR HILF: There is provision under the NAPSA for them to work 12-hour shifts as ordinary time by agreement.

PN287

THE COMMISSIONER: Sorry, say that to me again.

PN288

MR HILF: There is a provision under the NAPSA for employees to work 12-hour shifts as ordinary time by agreement.

PN289

THE COMMISSIONER: That's individual agreement though.

PN290

MR HILF: Yes.

PN291

THE COMMISSIONER: So if the NAPSA applies, you would have to have their individual agreement.

PN292

MR HILF: That's correct.

PN293

THE COMMISSIONER: And has that been made plain to those employees?

PN294

MR HILF: Yes. When they start as casuals, they get given a – it's a sheet out of the award. It actually spells it in the CA, as well.

PN295

THE COMMISSIONER: Yes. Actually there are 29 casuals, aren't there?

PN296

MR HILF: Yes. In section 7, 12-hour shifts.

PN297

THE COMMISSIONER: Yes. My apologies. Continue.

PN298

MR HILF: In section 7 it spells that they are 12-hour shifts.

PN299

THE COMMISSIONER: Clause 7?

PN300

MR HILF: Clause 7, yes.

PN301

THE COMMISSIONER: Of the agreement?

PN302

MR HILF: Yes.

PN303

THE COMMISSIONER: So clause 7 applies to all employees?

PN304

MR HILF: Correct.

PN305

THE COMMISSIONER: Yes, second paragraph; that's what you're referring to. By agreement between the employee prior to each shift.

PN306

MR HILF: That's correct.

PN307

THE COMMISSIONER: All right then. Mr Hilf, I still have a concern, as I've explained to you. On my costings for a permanent, I cannot see that employees would not suffer a disadvantage; but I would provide you an opportunity to put submissions in relation to that. I will go back and look at – rosters can change, as well, but the fact of the matter, if employees are working approximately 43 hours and paid ordinary time for that, then over whatever period of time are they going to be disadvantaged. They are, as I said, 24/7. They're not straight day workers, nor does the agreement provide for straight day work exclusively. We know that. They're security officers and they are going to work public holidays and they are going to work night shift, and they are going to work Saturday and Sunday unless your business changes; but the agreement provides that that's the pattern of work that they will work.

PN308

MR HILF: That's correct, and that won't change.

PN309

THE COMMISSIONER: No. Well, you might get different contracts and things may change, but basically this agreement provides for that type of workings.

PN310

MR HILF: This agreement is actually specific to a military contract we have and it's a – that's why the heading is RNB Defence Sites.

PN311

THE COMMISSIONER: So if you lost that contract, this agreement would no longer exist in a sense, anyway.

PN312

MR HILF: That's correct.

PN313

THE COMMISSIONER: So the working patterns really are quite set.

PN314

MR HILF: They are.

PN315

THE COMMISSIONER: In regard to this.

PN316

MR HILF: That's correct.

PN317

THE COMMISSIONER: This particular agreement.

PN318

MR HILF: That is correct.

PN319

THE COMMISSIONER: Yes. All right then. We've talked about copies of the authorisations for Mr Symons to represent employees and be their bargaining agent. We've also talked about the requirements of section 186(6) of the act in regard to the NESes, and that's in relation to dispute-settling clauses. We've talked about the hours of work, we've talked about annual leave and we've talked about the rates and how those rates for permanent employees would satisfy the no disadvantage test. We've also talked about casual employees and you've advised me that – which I think there are 29 – the award or the NAPSA would simply apply to - - -

PN320

MR HILF: When the agreement is finally passed, a lot of those casuals will actually convert to full-time.

PN321

THE COMMISSIONER: Well, as long as this agreement – the provisions in this agreement – can satisfy me that it passes the no disadvantage test. You've given me the submissions on casual. What happens in the future with their status, that remains for you and for them. It's simply the terms of the agreement that I am interested in and ensuring that employees do not suffer a disadvantage. Do you seek to file further material in relation to what we have been discussing?

PN322

MR HILF: I do.

PN323

THE COMMISSIONER: How much time would you require for that?

PN324

MR HILF: Two weeks, if possible.

PN325

THE COMMISSIONER: I'll provide you with two weeks. I'll provide you with three weeks, if you – what could be convenient for you, considering the other requirements on your time that you must have.

PN326

MR HILF: Three weeks would be even better, to be honest, because I actually have a couple of people - - -

PN327

THE COMMISSIONER: Why don't we say by close of business 31 March?

PN328

MR HILF: That's fine. Thank you.

PN329

THE COMMISSIONER: And you're clear on what I'm looking at and the concerns I have?

PN330

MR HILF: I am.

PN331

THE COMMISSIONER: All right then. Thank you for your time. I'll await and material, and I'll adjourn. Thank you.

PN332

<ADJOURNED INDEFINITELY [11.07AM]