AG2011/11555, Transcript of Proceedings [2011] FWATrans 1033 (20 September 2011)

TRANSCRIPT OF PROCEEDINGS

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Fair Work Act 2009 62859-1

COMMISSIONER CAMBRIDGE

AG2011/11555

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

Application by Mainstream Industries Pty Ltd
(AG2011/11555)





Sydney

10.02 AM, TUESDAY, 13 SEPTEMBER 2011

PN1

THE COMMISSIONER: Yes, on record, thanks. Who appears for the applicant in this matter today?

PN2

MR SAUER: Greg Sauer, Mainstream Industries, thanks, Commissioner.

PN3

THE COMMISSIONER: Mr Sauer, thank you. Mr Sauer, the matter has been listed today for hearing. The purpose of the proceeding is to alert you to a number of concerns that I have with the application so that you might give some consideration to these matters and, in due course, we might obtain some clarification of some of these issues. Some things might be able to be immediately addressed but others might require some further consideration and then subsequently, perhaps, the provision of some further information.

PN4

Now, if we just work through the documentation, we'll start at the beginning so to speak and we start with the F17. I think this is a statutory declaration of your, Mr Sauer, is that correct?

PN5

MR SAUER: Yes, Commissioner.

PN6

THE COMMISSIONER: Now something has got a bit tangled up here. The first issue relates to 2.1.1, the notice of representational rights. What I've wound up with attached to the F17 is something with "attachment" written in hand on it, but it appears to be extracts from some part of the agreement. It appears to be pages 6 and 22 of the agreement document but you've just got "attachment" written on them. I don't quite why they would - why that's been extracted and put together that way. Do you have the same documentation?

PN7

MR SAUER: Yes.

PN8

THE COMMISSIONER: I don't know what that's been done for like that. How does it - the little piece - - -

PN9

MR SAUER: Page 6, Commissioner, is not on my document. Page 22 certainly is.

PN10

THE COMMISSIONER: Well, I've got page - I've got the words written in hand with - in pen, in blue pen, attachment, and I've got page 6.

PN11

MR SAUER: Yes.

PN12

THE COMMISSIONER: Then I've got just - I think it's the top of page 7, cut out in a, once again, blue pen attachment written on it.

PN13

MR SAUER: Yes.

PN14

THE COMMISSIONER: And then the clause 38 with attachment written on it. And I just have no - I don't understand why on earth that's there. And really what all we needed there was a copy of the Notice of Representational Rights. I just don't follow what on earth has happened with that. So - - -

PN15

MR SAUER: Sorry, Commissioner - - -

PN16

THE COMMISSIONER: I'll leave it with you and maybe at some stage you can discuss with whoever put this - - -

PN17

MR SAUER: No, it's my - it's me. I have a very small business, I did it myself.

PN18

THE COMMISSIONER: Right. So I don't quite know what's happened there, but maybe it will come to you later. As I say, I just want to raise these points with you, or run through. There's a transcript taken and you can refer to that, so it will assist you in addressing these matters in due course. Then moving through the rest of the document, I think we've got everything else pretty much in order, but at point 2.3.1 where asked to identify the flexibility term, clause 20 is mentioned, but clause 20 is a clause called Appropriate Standard of Dress.

PN19

So I think we've got some numbering problems here. There are a number of issues of this nature that I'll have to draw to your attention.

PN20

MR SAUER: Yes. Commissioner, I picked up when we got notice that we were required to attend a hearing after the last one we thought we'd sorted everything - I noticed that there were four issues with clauses not being relative because of the deletion of some clauses you recommended previously, obviously, in this document F17 of clause 20 is another one that's escaped the proof reading process.

PN21

THE COMMISSIONER: I think clause 19 - yes - clause 20, I think is supposed to be clause 19. And where's got 32, is we go to 32, this is for the Consultation term, it's 31.

PN22

MR SAUER: 31.

PN23

THE COMMISSIONER: But I've got some other difficulties with the consultation clause in any event in a moment, but we'll get to that as we move through the documentation. But I think we just need to identify these various issues and then we'll try and work out how we can address them once we've sort of identified them all.

PN24

Then there's the issue of the boot test and the comparative position of less beneficial, more beneficial, well, that's mentioned, of course, in 3.4 and 3.5 of the F17, but we'll deal with that when we get to the actual agreement document and we'll look at some of those terms in a bit more detail. So they're the only issues with the F17. That is, I think we've got a numbering problem and we didn't get the stat dec - we didn't get the Representational Rights attached to the stat dec but some other material that I just don't follow. So that's with that part of it.

PN25

If we then turn to the agreement. In clause 2 - I have to say I don't remember exactly what happened with the earlier proceedings in respect of the hearing. I hope you appreciate we deal with that many of these that when they come around again they just start from the commencement process all over again.

PN26

MR SAUER: Yes.

PN27

THE COMMISSIONER: So it may have been that there's been an adjustment here to this clause as a result of the earlier proceedings. You've mentioned that the - in clause 2(b) that its employees engaged by Mainstream as service technicians, site supervisors, and field supervisors.

PN28

MR SAUER: That's correct, Commissioner. At the previous hearing you said that we should change that clause because we had all employees, and quite clearly during the course of the document it said that certain people weren't covered. Wash pad operators were in there previously. You said you were totally confused about wash pad operators, so we changed that whole clause to say the people who are directly covered.

PN29

THE COMMISSIONER: Right. I suppose - this is just probably my lack of familiarity with what you do - - -

PN30

MR SAUER: Yes.

PN31

THE COMMISSIONER: - - - because I looked at your classifications and you've got, sort of, five levels and where reference instruments the Cleaning Services Award, and yet we're talking about technicians and supervisors now. Now, technicians and supervisors have a sort of another connotation in - other than, sort of, cleaners. And I - and this is probably more my ignorance as to exactly the nature of the work that you do. My understanding is you go into, essentially, mine sites, isn't it, to clean them or something?

PN32

MR SAUER: Primarily, Commissioner. I suppose for clarity the best way of saying it is service technicians are the people who are at entry level at cleaning, basic cleaning.

PN33

THE COMMISSIONER: Yes.

PN34

MR SAUER: But they don't clean toilets.

PN35

THE COMMISSIONER: Right.

PN36

MR SAUER: So we give them a title of service technicians.

PN37

THE COMMISSIONER: Right.

PN38

MR SAUER: Site supervisors are simply the people that are in charge of the crews that are going out.

PN39

THE COMMISSIONER: Yes.

PN40

MR SAUER: And they are qualified at levels 3, 4 and 5.

PN41

THE COMMISSIONER: Right.

PN42

MR SAUER: And field supervisors, are simply Mr Provost that was with me previously, he is the one that coordinates all our activities in the field.

PN43

THE COMMISSIONER: Right. Well, I think is probably more just a case of the terminology that you use and - I don't think it's going to trouble us a great deal there in terms of that terminology but what you're really talking about is employees engaged in performing work in accordance with the functions undertaken by levels 1 to 5 as set out in both the classification structure and the classification levels that are set out in clause 10. That's really what you're talking about, isn't it?

PN44

MR SAUER: Basically, Commissioner, yes.

PN45

THE COMMISSIONER: It may be that you could just re-word it - because as I say, I'm not sure that it's going to be a major issue but it's a matter really for you. You want to confine the operation of the agreement to those persons performing work in accordance with your classification structure that's set out in the agreement.

PN46

MR SAUER: Yes.

PN47

THE COMMISSIONER: If you just leave those sort of broad terms in there you might be doing more with this than you really anticipated. I'm not sure. And that might not be something you want to do. I'll leave it for you to think about and whether you want to look at the transcript after today and think, "Well, maybe we're better off changing that to saying it applies to those employees performing work comprehended by the classifications and their definitions contained in the agreement, levels 1 to 5."

PN48

MR SAUER: I think we can live with that, Commissioner.

PN49

THE COMMISSIONER: Something like that might be easier for you and won't lead to a potential for there to be ambiguity or uncertainty about whether this is applying to some person who has come in in some supervisory role and was never under this and - you know, you could get into that sort of dilemma, perhaps. Not a big issue, wouldn't be something that would stop the approval in due course, but think about that, please.

PN50

The next matter is not - is once again not a major issue. This is - the actual Act says it doesn't operate from the date of its approval. The way the Act is configured - and it's got some strange things in it this Act, I should tell you, but it operates seven days after the date of approval. That's just the way the Act is written. So it operates from seven days after the date is approved by Fair Work Australia and that's the way the Act requires it. So that's - once again, it's not a big issue, but it's better to understand that that's the way that it will work.

PN51

In clause 4, you've got your classifications here of employment: full time, part time, casuals, nothing wrong with that. That's all fine. And I've looked at the way you've got your hours and so forth configured and that - given you've got an overtime provision for night work and Sunday work and public holidays - I don't have any difficulty with the way you've configured all of that, but I have a little trouble - I have a little trouble following what you're doing with casuals, in 4(d).

PN52

And this is repeated in a number of other clauses where you've got casuals that you say are engaged by the hour but you're requiring them to give a week's notice and so forth. And there are lots of aspects of this where the casual seems to be -hat we would ordinarily call a casual - but then you're giving this other requirement for a week's notice and so forth with a casual employee.

PN53

Now, I'm just not sure how that works in a practical sense. The way that employment law is established - this is - even if you call a person a casual and you pay them the 25 per cent or whatever, and so forth, if they start getting engaged on a regular systematic basis over extended periods of time, even though you're calling them casual and paying the casual loading, they'll actually not at law be held to be casual. The casual is fictitious. They're actually regularly engaged employees. And you've got to be very careful then that you don't wind up starting to have those people entitled to the benefits of regular so called full time employment but being called casuals.

PN54

So I - it's more a question of being cautious here about how you deal with casuals. I would be inclined to think that over a period of time if you're getting a regular systematic pattern of work for casuals, be very careful about that and what it means it terms of your obligations on those individuals.

PN55

MR SAUER: Yes. I must admit I'm a little confused, Commissioner, because that whole clause was in the one and it was passed without any comments.

PN56

THE COMMISSIONER: Well, this is the difficulty that emerges with these things. I frankly just - when they come in, they come afresh and I start looking at them, and there might be something that I pick up this that I missed the first time, or vice versa so to speak.

PN57

MR SAUER: Yes.

PN58

THE COMMISSIONER: But I'm not suggesting that's a monumental issue for you, it's more a question of concern that you don't wind up thinking you've got a casual employee, thinking all their entitlements are fixed by the 25 per cent, and then when you look at the way they're being engaged their actual employments are not casual at all. So I'd just be careful with that.

PN59

MR SAUER: Okay. Point taken, Commissioner.

PN60

THE COMMISSIONER: Now, over the page on clause 7, this is - this is - to some extent it's a bit coupled to that issue. This is the probationary period and I would have thought that I probably raised this on the previous occasion. The way the National Employment Standards work now, there has to be a minimum of one week's notice for any person even if you're on a period of probation. So it appears here that you've got - well, all right - within the period of the probation, which is fine, you've got a three month probationary period, you can be dismissed without notice for serious misconduct - and there's nothing wrong with that, that's fine - otherwise the statutory notice period of one week's notice will be required.

PN61

And I think that's probably - that's fine, but when you turn to page 33, there's a sort of, internal conflict. If you go to clause 33 of the document under the heading, under 33(b), Immediate Termination of Employment, it says:

PN62

Clause 33(b) does not limit Mainstream's ability to terminate an employee's employment at any time without notice, without making payment in lieu thereof where the employee's employment remains subject to a probationary period.

PN63

So it sort of - you've taken it out in 7 and you've put it back in 33(b) Immediate Termination of Employment. There's absolutely no problem with saying you're preserving and reserving your rights to dismiss without notice in instances of gross misconduct. No problem with that.

PN64

MR SAUER: Yes.

PN65

THE COMMISSIONER: But you can't do it in the probation - you can't use the probation period as a means to allow for dismissal without notice. So in the probationary period you've still got to give the one week's notice, which is what you say in 7, but you don't say it in 33(b). So there's just an internal conflict there. That could probably be tidied up if we just didn't mention the probationary period at all in that 33 section there. As I say, you're quite - it's quite proper to have a clause which says, "We are ensuring that our rights in respect of dismissal without notice are preserved where we've got serious misconduct."

PN66

Now, if we go back to where we were in the agreement, the next clause 8? This is these numbering provisions, I think, getting tangled up. No, I think that's all right. 11(d) where it's mentioned there - 11(d) is the right one, I think.

PN67

MR SAUER: Commissioner, I think you were on the right track then. 8(f) - clause 14 is mentioned twice.

PN68

THE COMMISSIONER: That's right.

PN69

MR SAUER: And it should be clause 13.

PN70

THE COMMISSIONER: Right. We'll you've picked these up already.

PN71

MR SAUER: Yes, and I'm scratching my head as to where we failed this time after having had the last review, I went back through it and I picked up those - as numbering.

PN72

THE COMMISSIONER: All right.

PN73

MR SAUER: So, yes.

PN74

THE COMMISSIONER: But I mean these are matters which can be addressed by way of this undertaking process - - -

PN75

MR SAUER: Yes.

PN76

THE COMMISSIONER: - - - you know, the section 190 Undertaking.

PN77

MR SAUER: Yes.

PN78

THE COMMISSIONER: So I don't want you to have run around in circle after circle with all this.

PN79

MR SAUER: No.

PN80

THE COMMISSIONER: But we've got to try and get it right.

PN81

MR SAUER: Yes.

PN82

THE COMMISSIONER: And sometimes - you know, these things are never, ever perfect. I mean, in three years time when you come to do it again or whatever you'll want to do something different and you'll want to change things. They're always in a state of constant improvement, I hope. But I was looking earlier at (d), I clause 11(d) - the reference to 11(d) is all right. For what ever reason that didn't get tangled up with the - yes, 11(d) is the night shift, so that was all right.

PN83

MR SAUER: Yes.

PN84

THE COMMISSIONER: Okay. But then you've just picked (f), those clause 14, that needs to be changed.

PN85

MR SAUER: Yes.

PN86

THE COMMISSIONER: That's a simple change. In (h) and I don't know whether I didn't pick this up before or not, it might be my error, but you can't preserve the ultimate decision in respect of additional hours. The Act - and you've already mentioned this in section 62, which is probably what I - if you look at (e) - and I would have raised this on the previous occasion, the Act says that there's this, sort of section 62, which talks about the requirements about refusing additional hours.

PN87

It's highly unlikely to ever trouble you, but you can't then in (h) say, well, the ultimate decision to direct employees to work additional hours remains at your discretion. It is your discretion, subject to, once again, section 62 of the Act. So that just needs to mention section 62. Because the - you can't take away the employer's right to say, "Well, I believe I've got a case to refuse the additional hours and so forth" so.

PN88

We've also got in 9(c), I don't know whether you picked it up there - - -

PN89

MR SAUER: Yes.

PN90

THE COMMISSIONER: - - - a reference - - -

PN91

MR SAUER: It's in 13 - - -

PN92

THE COMMISSIONER: That's the same one, all right, you've got that. Now, I don't know whether I mentioned that before - I don't quite understand 10(a) what the distinction is between the full time, part time employees are to be paid a wage, i.e., an hourly rate; casual employees will be paid an hourly rate. That seems a strange thing to say.

PN93

MR SAUER: I agree, Commissioner, and it went through last time - both of us missed it. As I said at the last hearing, this document was an inheritance for me. It was drawn up by the firm's previous solicitor who is no longer working - and I will fix that one as well.

PN94

THE COMMISSIONER: I just don't think it makes any sense, frankly.

PN95

MR SAUER: It doesn't.

PN96

THE COMMISSIONER: All right. Okay. Now, we get into another area where we need - and this I don't think we picked up before from memory. As I say, I apologise if I didn't pick these up on the first occasion and now they're being looked at for the first time. But when you've got 10(c) here, you're talking about picking up all the allowance - I think you're talking about picked up all the allowances that would otherwise apply from the modern award. And that's fine, I suppose, but when you go to clause 11(e) - 11(e) says:

PN97

Allowances set out in clauses 17.2(a), (b) and (c) and 17.8 of the Cleaning Services Award do not apply as they've been rolled in.

PN98

Now, that's all right, but the inference there is - if you go to the modern award and you look at that clause, what about the others that you don't specify there, because there are a variety of others. And there's where you might say - I think you said on the last occasion there isn't any toilet cleaning so that doesn't matter. But if you go to the modern award and you look at this 17.2 (a), (b) and (c), okay, that's all right, cold places, hot places, and height.

PN99

MR SAUER: Yes.

PN100

THE COMMISSIONER: That's in. Okay. District allowances, we don't need to worry about that. And then the - in your document you then go to 17.8. So what is it that exists between them? There's a first aid allowance, there's a leading hand allowance, there meal allowance, refuge collection, toilet cleaning - well, you said there's no toilet cleaning - a uniform allowance. All of those things. Now, my understanding is your role in all of those in as well - or are you not?

PN101

MR SAUER: No, 17.1 clause (a), (b), and (c) - - -

PN102

THE COMMISSIONER: Yes.

PN103

MR SAUER: - - - are rolled into the hourly rate.

PN104

THE COMMISSIONER: Yes.

PN105

MR SAUER: And 17.8 is rolled into the hourly rate. We are currently paying $15 a week for first aid allowance.

PN106

THE COMMISSIONER: You are doing those?

PN107

MR SAUER: Yes.

PN108

THE COMMISSIONER: Okay. Well, then, what we need to do, I think is - if you go back to 10(c) where I first raised this - - -

PN109

MR SAUER: Yes.

PN110

THE COMMISSIONER: - - - I think we need to say that - 10(c) probably needs to start with, "Subject to clause 11(e)" or otherwise we don't know what's happening.

PN111

MR SAUER: Okay.

PN112

THE COMMISSIONER: All right. And then you're right. Okay. All right. I think we'll get to - we've gone through that. Now, I may not - once again I may not - if we go to clause 14, please, Personal Leave. This says:

PN113

No personal leave can be taken during any period of annual leave if an employee is on annual leave they cannot seek to cover that - - -

PN114

Well, section 89 of the Act - this is part of the National Employment Standard - says that:

PN115

If the period during which an employee takes paid annual leave includes a period of any other leave other than unpaid parental leave or period of absence from employment under division 8 -

PN116

which deals with community service leave -

PN117

the employee is taken not to be on paid annual leave for the period of that other leave or absence.

PN118

So, in fact, you can't do what it's trying to do there because 89(2) says you can't. Your annual leave - if it happens to clash with, in this case, personal leave your annual leave is, sort of, replaced by the personal leave. So you are entitled to the personal leave.

PN119

MR SAUER: Again, that one wasn't picked up - - -

PN120

THE COMMISSIONER: And I apologise for that if I didn't pick it up before, but I just don't think that section 89(2) will let you do what those last two sentences are trying to do.

PN121

MR SAUER: Okay.

PN122

THE COMMISSIONER: The incidence of this occurring are probably so infrequent - anyway, that's the way that it's dealt with in the Act. Clause 15(f) this is the Cashing Out Of Annual Leave. Once again, this is dealt with by section 94 of the Act. And it says in 94(4):

PN123

The employer must pay the employee at least the full amount that would have been payable to the employee had the employee taken the leave that the employee has forgone.

PN124

Now, up the top you've got 17.5 per cent loading on the first four weeks. So if an employee cashes this out, the Act is going to say they've got to get the full amount they would have received had they taken the leave. Now, that's section 94.4 of the Act. So you can't get just your normal hourly rate, in fact, you have to get what you would have been paid had you taken the leave for the cashing out. So I just don't think that section 94.4 will let that stand.

PN125

Now, if we go to clause 20 - and I assume that I raised this with you on the previous occasion because I see you've mentioned section 324 and 326 here. But is then the next paragraph - is that new or was that there before, about casual employees? Because I think the deduction - we're talking about here recovering or deducting from wages amounts that - clause 20, is that casual employee piece new or was that there before?

PN126

MR SAUER: That's new, Commissioner. The previous one was clause 21 in the original document lodged. And the third paragraph is a new one, yes.

PN127

THE COMMISSIONER: I think there's some difficulties, if you try to treat any - particularly in terms of any deductions - I think you're going to have to be subject to - whatever you do with deductions, they have to be in accordance with those sections of the Act. Casual employees or whoever they are, it doesn't matter. You've got to make sure you've got your deduction arrangements in conformity with the - - -

PN128

MR SAUER: We do, Commissioner, yes.

PN129

THE COMMISSIONER: So really that should - perhaps, that piece where it says "any deductions" probably needs to go at the end of the whole clause so that it covers everyone, or it's repeated after the casual employees' clause, or whatever that's - or it's just understood that any - I mean, you could do this by a simple undertaking saying any of the deductions made for full time, part time, or casual employees in clause 20, will be done so in accordance with the provisions of section 324 and 326 of the Act just for the purposes of clarity. So that would be a simple undertaking that would fix that.

PN130

MR SAUER: Yes.

PN131

THE COMMISSIONER: I don't know whether on the previous occasion I raised any issue regarding clause 29, your restraints. But, look, I'm not going to say that it's going to impede the approval. I'm just not sure whether legally those things actually work. As I think you probably said a moment ago, a lot of this has been carried over from some lawyers that had a look at this some time ago. You can leave it there but I really think that if you try and rely upon it, it has questionable legal validity to say that these terms can operate beyond the period of employment of an employee and bind them and so forth, it's a very difficult area.

PN132

It's more a question, perhaps, to contemplate in respect of a new agreement after, you know, three years time whether you really want to try and put that in there. Different lawyers will give you different views on this, but I'm just not sure whether it can actually be done. But it's not something that we need to trouble too much about.

PN133

Clause 31, Consultation: I - there is a model consultation term set out in schedule 2.3 of the Act, and I just wonder whether that might serve you better than what you've got there. Could I suggest that in terms of dealing with this clause after today you go away and you can obviously get this off the website, you just have to find it in amongst all the legislation. Schedule 2.3 sets out this model term. And many of these documents are just simple say, "Well, in respect of consultation we're happy to embody the provisions of the model term." It does make it a bit easier in that there couldn't be any suggestion that the consultation provisions are less than what applies via the legislation.

PN134

Have a look and compare then and if you want you may want to indicate an undertaking to the effect of adopting the model term. It's just a suggestion more than anything else I think.

PN135

In clause 33, we've got a very simple typo, I think. In 33(b) it's repeated, "Notice requirement to be given by employees" I should that should say, "by Mainstream or the employer". The first bit is the notice requirement that - be given by employees, and you've got a two week arrangement here. And it's not employees in the next bit, it's Mainstream's I think - I think it's just been a typing error.

PN136

MR SAUER: It's the same in the last one too.

PN137

THE COMMISSIONER: Didn't pick it up.

PN138

MR SAUER: No.

PN139

THE COMMISSIONER: So this is - you can look at these things five, six times and still find something, if you follow what I'm saying. It can be very difficult. Okay. So I think that just needs to be corrected there. I understand what you're doing with your two weeks and so forth, it doesn't seem to me to be offending the Act at all, but we just need to have (b) a notice requirement to be given by Mainstream as opposed to the "the employer".

PN140

In clause 34, and I'm pretty sure I didn't pick this up on the last occasion. In 34(c), if this was the same in the previous one then I just didn't pick it up when I read it the first time. There are some sections of the Act that deal with when you don't get a redundancy payment. They're sections 120 and 122. And I don't think that clause 34(c) can operate contrary to sections 120 and 122 of the Act.

PN141

If you look at what 34(c) is trying to do there, I think you might think it's a bit tough on someone too, and I don't quite know how it would work. Let's just say you made a person redundant and you paid them out their redundancy, and then they got another job within four weeks, so - this is saying, "Well, you've got to give us the redundancy back." Well, you know, in many respects it's just good luck or good fortune or whatever if that occurs.

PN142

There's can't be a capacity to then try and recover the redundancy for a period of up to four weeks after the termination of the employment. I don't know how you'd do it to begin with. But there are circumstances where, under the Act, if there is a transfer - if a person does get other employment and their previous service is carried across, or whatever, that the redundancy payments can be reduced or completely removed. Their section - I must say they're sections that deal with 120, 122. I don't think 34(c) really can stand. And if you think about it for more than a moment I think you'll find it's a very inventive lawyer that's got this idea that somehow or another you've terminated the employment, and if a person gets another job just by going out and looking for it and finding it, within four weeks, suddenly you've got some means to magically to go and get the money back. I don't know how you could do it.

PN143

MR SAUER: Yes.

PN144

THE COMMISSIONER: So - - -

PN145

MR SAUER: It's another one that was in there last time. Because it got through last time we haven't looked at it and - - -

PN146

THE COMMISSIONER: I make no criticism of you for that. It's my fault for not picking it up on the first time.

PN147

MR SAUER: Ours as well, Commissioner, because I agree, fundamentally it can't work.

PN148

THE COMMISSIONER: It just doesn't work.

PN149

MR SAUER: No.

PN150

THE COMMISSIONER: It's a crazy idea, frankly. And - anyway, so I just think 34(c) is just of no use to you. We're getting close to the end. I think in the your dictionary, we've just got another one of these numbering changes. Designated driver, clause 12(b) I think that should be now 11(b). There isn't a 12(b).

PN151

MR SAUER: Yes, 11(b), Commissioner, that's correct.

PN152

THE COMMISSIONER: Okay. Another simple little one we can address by way of undertaking. And I think that's really all. So I don't think - looking at your hourly rates, I think I've verified we've got these - well, they're in excess of the award classifications and so forth.

PN153

So I think - the only other minor criticism I'll make, and this is probably more for - when this comes around again in the future - the signatories page - probably consistent with some of the other aspects of document that - there's no dating on it. To not date when you signing a document is just a real problem. We've got the F17 in terms of the dates that you've said about all this, but for the future let's make sure that we've got some dates on the signatory page of the document in three years time.

PN154

So they're the issues. I don't think that they're monumental to the point at which we can't get this tidied up and then approved, let me put it that way to you.

PN155

MR SAUER: Yes.

PN156

THE COMMISSIONER: So I just think what we need to do now go through the transcript from today - if you can address the various points I've raised with the undertakings, and then send those into my Chambers, I'll have a look at the undertakings, assuming that they do address the concerns I've raised, well, then the next - that will then lead to the decision approving of the agreement, and we're underway - we've finally got it tidied up.

PN157

MR SAUER: Yes.

PN158

THE COMMISSIONER: So - as I say, I think the matters are not of such a nature that impede the prospect here of getting this tidied up. But we just need those undertakings and - there's a sort of format - if you look at - I don't know whether you've been directed to this at all, but you can see from some of the other agreements that are all available - you can view all of these things on our website.

PN159

MR SAUER: Yes, Commissioner, yes.

PN160

THE COMMISSIONER: And you'll see that the format that other people have used for providing these undertakings, which are made by section 190 of the Act. The undertakings have to be signed. I'd urge you to just go and have a look at some of these, because some of them have been properly, sort of, configured and drafted, and you can plagiarise some of that - just take someone else's, sort of, configuration, then put your own undertakings in to address those various points that have been raised.

PN161

MR SAUER: Does one spring to me, Commissioner, that I could look straight at?

PN162

THE COMMISSIONER: My regular associate, Corinne, is back from leave tomorrow - maybe not tomorrow because she'll probably be swapped with her stuff - - -

PN163

MR SAUER: It's all right, I've got interviews tomorrow so - yes.

PN164

THE COMMISSIONER: Okay. Later in the week, if you give Corinne a call - - -

PN165

MR SAUER: Yes.

PN166

THE COMMISSIONER: - - - and say to her, "Look, the Commissioner was mentioning these" - she's got a couple of the more favoured configurations that we prefer, because it looks - some of these are better than others, so she'll certainly point you in the right direction with the, sort of, format for some undertakings.

PN167

MR SAUER: Very good.

PN168

THE COMMISSIONER: And then once you get that assembled, the only thing you have to do is ensure that there's - section 190 requires that there be a communication with the employees about the changes that are being made. The undertakings can't be accepted unless I'm convinced that the views of bargaining representatives to the agreement have been sought. So something that says, "Well, the undertakings that we've got here have been shown to the employees" or whatever, will satisfy that requirement.

PN169

MR SAUER: I think I could probably go one step further, Commissioner, and get Mr Provost, who was with me last time as the employee representative, to sign on the undertakings as well.

PN170

THE COMMISSIONER: Well, that would verify that they've been conveyed. I mean, the Act - what the Act is trying to do here is to say, well, if undertakings are made to, sort of, vary some of the terms, it's important that the people that are subject to all this have been told about it.

PN171

MR SAUER: Yes.

PN172

THE COMMISSIONER: So that's all that is. So, yes, you could do it that way. That's easiest enough fixed, I think. All right. I think that's all we need to do. We'll get undertakings in within the next couple of weeks, say, and then - as I say, I'll look at them. If there was any problem with any of them we probably would communicate with you. Corinne would probably send you an email or something. But let's assume that they tidy up their concerns raised today. If they do, then nothing will impede - the approval will just be a decision then issued approving the agreement with the undertakings. All right.

PN173

MR SAUER: Thank you, Commissioner.

PN174

THE COMMISSIONER: All right. Sorry, it's been a little laborious, but I think we're just about there.

PN175

MR SAUER: No. Interestingly, the last time we had to come down, just as an aside I was bamboozled and not thinking when you said we failed the boot test.

PN176

THE COMMISSIONER: Right.

PN177

MR SAUER: ATM machine tautology. It wasn't until I was on the train back to Newcastle I worked out why we failed the boot initially. 10 days after we'd had our ballot on the document as it was, the National Wage rise went through before it was considered.

PN178

THE COMMISSIONER: That's why the figures were - - -

PN179

MR SAUER: That's why we're out by a dollar and 30 cents respectively.

PN180

THE COMMISSIONER: Well, as I said, I looked at the figures there and I looked and I worked you, you know, you're in front of the modern award rates so that - - -

PN181

MR SAUER: Yes.

PN182

THE COMMISSIONER: - - - that didn't trouble me this time, but we have a number of these other matters that we can tidy up. It's really a tidying up exercise, I think.

PN183

MR SAUER: I appreciate that, Commissioner.

PN184

THE COMMISSIONER: All right. Well, we'll anticipate receiving some further communication from you and then the matter will proceed from there.

PN185

MR SAUER: Thank you, Commissioner.

PN186

THE COMMISSIONER: On that basis, now the proceedings stand adjourned.

<ADJOURNED INDEFINITELY [10.48AM]