AG2011/12679, Transcript of Proceedings [2011] FWATrans 1251 (2 November 2011)

TRANSCRIPT OF PROCEEDINGS

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Fair Work Act 2009 64577-1

COMMISSIONER RYAN

AG2011/12679

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

Application by Jason Ross Walker
(AG2011/12679)





Melbourne

3.11PM, FRIDAY, 21 OCTOBER 2011

PN1

THE COMMISSIONER: I'll take the appearances please.

PN2

MR J. D'ABACO: If the tribunal pleases, I seek permission to appear on behalf of the applicant. Also seeking permission to appear with me is MR J. KIRKHAM.

PN3

THE COMMISSIONER: Permission is granted.

PN4

MR R. WAINWRIGHT: If the tribunal pleases, Wainwright, initial R., for the Construction, Forestry, Mining and Energy Union. We seek to intervene in this matter.

PN5

THE COMMISSIONER: You seek to be heard?

PN6

MR WAINWRIGHT: Yes.

PN7

THE COMMISSIONER: Permission is granted.

PN8

MR D'ABACO: Perhaps - I don't mean to cavil from your ruling, sir, but perhaps if my friend could outline the basis upon which he seeks to be heard. The reason I say that is on the basis on my instructions, the organisation Mr Wainwright represents does not have any members who are employed at my client's premises.

PN9

THE COMMISSIONER: Mr Wainwright.

PN10

MR WAINWRIGHT: Commissioner, I have no problem with the ruling that you made either. Commissioner, you have the power to inform yourself about any matters before the tribunal under section 590 of the Act. We believe that we can assist the tribunal in relation to this application and our interest is to ensure that the requirements of the Act, as they pertain to the certification of agreements, are met in this matter.

PN11

THE COMMISSIONER: Does that give you sufficient - - -

PN12

MR D'ABACO: No, it doesn't. No, it doesn't, Commissioner. Ultimately the matter of whether or not the requirements of the Act for the approval of the agreement - are a matter for the tribunal as presently constituted. The Commissioner will be aware of the decision of O'Callaghan SDP in the matter of Leane Electrical Pty Ltd where there was an application for intervention or a period - leave was sought to appear by the - in that case I think it was the AMWU - CEPU, I'm sorry - that application was only granted on the basis that the Senior Deputy President was satisfied that the CEPU actually had members who were employed in the workplace. I take it from the fact that my friend hasn't addressed that issue, that the situation is that they do not have any members in the workplace. It's on that basis that I continue then to oppose either the application to appear or to intervene.

PN13

THE COMMISSIONER: Yes. I'll grant the application for the CFMEU to be involved in the proceedings. It doesn't mean that it's open slather, Mr Wainwright. You're here; as to whether or not you stay here, as to whether or not you really have much to say, well, I'll determine that as we go along. The critical issue is correctly that I have to determine whether or not the application meets the requirements of the Act. If I think assistance can be given by anyone who seeks to appear, to assist me to get to the position where I can approve the agreement, I'll accept it.

PN14

I take the approach that the jurisdiction in relation to agreement-making is to positively assist the parties to get agreements, and the parties being the employer and employees, to the extent that any assistance is given, even if it's by the CFMEU, who may not have a direct interest in the matter on the basis that they don't - or they were certainly not named as a bargaining representative for the employees. It may still assist the tribunal in a speedy resolution of this matter. I also note that this is not the first time that the applicant in this matter has sought to have an agreement approved; this is, in some respects, second time around. I'm more than keen in that sense to try and assist the applicant to get an agreement if that's what they're trying to do, but it's a case of, have they done it? Have they done everything properly? Is the agreement in a form that I can approve?

PN15

Mr D'Abaco, I have some concerns in relation to the contents of the agreement. If I identify my concerns, you can then address them, and I think that that probably veers this way because if I tell you what I've got a concern about, you can then read between the lines. If I don't have a concern about a clause, you don't necessarily then have to say anything about other matters, but there are a number of issues that I've got a concern about, and they're all ones that will - they go to whether or not I've got an agreement that I can properly assess against the BOOT test, and if I have, whether or not the agreement does pass the BOOT. The first issue I raise is clause 1.2, which is titled Basis for the Agreement. Paragraph (a) says:

PN16

This enterprise agreement will be binding on Jason Ross Walker trading as Jason Walker Painting, the employer, on the one hand, and the employees of the employer on the other hand, employed in the classifications under this agreement.

PN17

That type of language is quite common and I have no difficulty with that because it then defines the group of employees by reference to the classifications under the agreement. The difficulty is I can't find the classifications in the agreement, in which case that becomes a meaningless descriptor and may certainly cause us a significant problem. If I can't identify a discrete group of employees who are to be covered by the agreement, I can't then be satisfied that the group of persons to be covered by the agreement has been fairly chosen. Is there something I'm missing in the agreement or is there something simply missing from the agreement which is known to the employer and to the employees?

PN18

MR D'ABACO: There's no classification structure in the traditional sense of that term in the agreement, as you've noted, sir. However, the reference to the word "classification" as it appears in clause 1.2 subparagraph (a) is, as I understand it, a reference to clause 3.2 of the agreement, which is entitled Employment Classifications, and clause 3.2 then sets out the basis of the engagement of employees as either casual employees, daily hire employees or part-time employees. So insofar as there is a reference to classifications within 1.2(a), that, as I am instructed, is what that term reads. True it may be that that is not the way in which in this tribunal, in any event, the term "classifications" is ordinarily construed or interpreted, but, in my submission, it's fairly evident on the face of the document that that is what is intended and it doesn't propose or doesn't present a difficulty in respect of certification.

PN19

THE COMMISSIONER: The statutory declaration of Jason Walker, the form F17 which has been filed in this matter, at clause 2.9 it deals with the issue raised by section 186 subsection (3), which is the fairly chosen group, and the answer to question 2.9 is, "This agreement covers all the employees that I employ, including my apprentice." The work that is said to be done by employees under the agreement is answered at question 1.5 on the form F17 as "painting (commercial)". Even if I take that as a broad indicator, it doesn't appear to me to sufficiently describe a group of workers in a way that I could meaningfully apply the BOOT on the basis that if it's all employees, today - or at the time the agreement is made there might be an apprentice and a painter.

PN20

During the life of the agreement there could be an apprentice, a painter and a clerk or an apprentice, a painter and a paint mixer or a paint maker. I'm not certain, but anything that is otherwise associated with painting work, or an apprentice, a painter, a clerk and a professional estimator or tenderer, someone to do work. The scope of this agreement on your descriptions, that scope for coverage of the agreement is that it relates to persons who would fall within clause 3.2, simply means anyone who is employed as a casual, a daily hire or a part-time employee. So a part-time manager, part-time estimator, scheduler, any of those sorts of technical professional grades would certainly be an employee of the employer engaged in "painting (commercial)".

PN21

That's only what I would have thought are obvious possible inclusions. There could be others that I haven't even thought about. But it would appear to me that not all of those classifications would necessarily be matters that are covered by the award, which is identified as the modern award, in answer to question 3.1 on form F17 as MA000020, but could be employees covered by the modern Clerical Award, or even other awards, the Manufacturing Award. It just appears to me that there is such vagueness in the definition of the class of employees to be covered by this agreement that I could not usefully apply the BOOT, because I don't have sufficient detail as to how broad or how narrow is the scope of the coverage of the agreement to make any valid decisions.

PN22

MR D'ABACO: Commissioner, I appreciate the concern that you've raised, and if I can say, with respect, it's a valid concern. May I ask that the concern be noted. Once you have gone through the issues of concern that you've raised, I'll seek that the matter be stood down for the purpose of me obtaining some instructions.

PN23

THE COMMISSIONER: Yes.

PN24

MR D'ABACO: But I understand the concern you're raising and at first instance it appears to be a legitimate concern.

PN25

THE COMMISSIONER: My concern would be addressed by an undertaking, because it is apparent to me from looking at form F17 that the group of employees who - I would say the key group - and consistent with industry practice, that that is going to be those persons of the same class as the persons who are currently employed.

PN26

MR D'ABACO: I must say that my mind did turn to the - I think it's sort of, if I can put it so, almost a refuge of the scoundrel, the undertakings. Not suggesting that whoever provides it is such, but it's often the proper means which is utilised to address concerns in respect of the contents of an agreement; however, certainly in my experience, when the parties then go on and it comes at some late point in time for issues of interpretation to arise, often the matters which aren't contained in the agreement but have been dealt with by some form of undertaking are forgotten or not brought to the attention of the relevant representatives and it causes all sorts of problems. So I - - -

PN27

THE COMMISSIONER: (indistinct) accept that the tribunal has overcome that, and I accept that certainly in my time, prior to being appointed to the tribunal as an advocate, and dealing with those sorts of issues under previous legislation, it was incredibly easy for undertakings to have been completely lost, and often the only persons who understood that undertakings that were given were the direct advocates; not even the parties, but only the direct advocates knew what had been done. Fortunately the tribunal has a system in place whereby the decision is attached to the agreement and the undertakings and they form a single document which constitutes the approved agreement and is available publicly on the web site.

PN28

That would appear to make clear that any person, after the agreement is approved, will always be alerted to the fact that undertakings are given. They're mentioned in the formal decision and they are always attached to the agreement, which is why I have a much higher confidence in the value of undertakings as a means of being able to address concerns that are raised by the tribunal. But certainly having - I've identified the concern and consider it later.

PN29

MR D'ABACO: Yes.

PN30

THE COMMISSIONER: The next matter I raise is clause 3.2.1, casual employee, and it's the definition in paragraph (a), and it reads:

PN31

A casual employee is an employee engaged on an hourly basis or an employee in receipt of the allowance prescribed in 3.2.1(c).

PN32

The difficulty I have with that is that is a definition which is very different from the definition in the Construction Award, and it is so because this definition is predicated on two classes of persons being able to be treated as casuals. A person who is employed at an hourly basis, even if that is ongoing, regular, systematic employment, as long as it's employment on an hourly basis. The contract of employment could be, "You're employed on an hourly basis, but it's ongoing hourly," in which sense that is not a person engaged as a casual, it's a person engaged primarily as a permanent employee but merely employed on an hourly basis.

PN33

The second is that an employee could be specifically employed on an ongoing and permanent basis but be treated as a casual under clause 3.2.1(a), simply because they are in receipt of the 25 per cent loading. Now, that would be nothing other than a device to avoid the operations of certain provisions in the NES, such as cashing out of annual leave or cashing out of personal carers leave in breach of the NES, so I have great concerns about the way in which a casual employee is defined for the purposes of the agreement vis-a-vis the award. You may wish to consider that. I won't require you to respond immediately on that.

PN34

MR D'ABACO: Yes, sir, thank you.

PN35

THE COMMISSIONER: Okay. The next issue I would raise is clause 3.2.3, part-time employment. The difficulty I have with this and the concern is that the notion of part-time employment under the agreement simply does not pick up some of the standard protections that are in the part-time employment clause of the award. In particular, the award makes it very clear that not only does the hours of work and the pattern of work have to be agreed prior to engagement, but any variation has to be in writing, has to be agreed, and where there's not an agreement to vary the agreed hours, and where the employer requires the part-time worker to work outside the agreed hours, the award makes it very clear that overtime rates have to be paid.

PN36

The absence of those protections in this matter means that an employee could be required to work outside their agreed hours only at ordinary time rates of pay and not at the overtime rate of pay. My concerns in relation to the part-time employment would be readily addressed by ensuring that clause 3.2.3 incorporated the specific protections that are provided for in clause 13, I think, of the award. I try to remember it but I keep forgetting; 11, 12 or 13 is the part-time employment clause in the award. The next issue I raise - - -

PN37

MR WAINWRIGHT: Commissioner, on the basis that I'm here to assist, I can confirm that it's clause 13.

PN38

THE COMMISSIONER: Thank you, yes. The next issue I'd raise is in relation to clause 3.4.1, it starts off, the opening words, "The employer may terminate this agreement at any time." I read the clause as really being a typographical error. I mean, the title of the clause is Termination of Employment, and I'm presuming that it's not a clever trick, but merely a typographical error. On that - - -

PN39

MR D'ABACO: I think that one I can - it was clearly a typographical error.

PN40

THE COMMISSIONER: Yes, and on that basis, if it's merely a typographical error, that can be corrected not by way of undertaking, but simply by me permitting the agreement to be amended, and you can correct the typographical error and simply refile a PDF version of the same document. The next issue I raise is clause 4.1. The issues in relation to clause 4.1 are twofold. Firstly, there's a single hourly rate. Now, a single hourly rate of 22.50 per hour on and from the date of operation may be sufficient to pass the BOOT for an apprentice, and I note that the form F17 indicates that an apprentice is employed and therefore an apprentice will get paid 22.50 and hour.

PN41

But given the difficulties that might flow if there are more skilled employees employed under the terms of this agreement, the 22.50 an hour - because it also includes a range of allowances, and in fact it would include all allowances that would otherwise be payable under the award which are not specifically included in this agreement. It would have bought out all of them on the basis that this agreement excludes the award and doesn't incorporate anything from the award. I would need some specific material to be put to me to show that for the classes of employees that would be employed under this agreement, that the single rate will pass the BOOT in relation to each of the classes of employees that would be employed.

PN42

That may be relatively easy. I'm very familiar with enough of the agreements that have been done in this industry to know, generally by feel, that if you give me the classification structure that is going to be applied, it's relatively easy to make a very quick judgment that the rates will or will not pass a BOOT. So I'm not necessarily looking for highly detailed information, I'd be satisfied with something that is relatively basic and much more directed to what are the skill levels and what would be the award classification of the employees employed under this agreement if they were employed under a modern award.

PN43

The next issue I'd raise is clause 5.6.1. The approach to shift work - there's some inconsistencies in the language within clause 5.6. 5.6.2 is titled Afternoon and Night Shift Allowances, but 5.6.2(b) refers to evening or night shift, 5.6.3 is referred to Afternoon/Night Shift Ordinary Hours, and the language of 5.6.3 refers to afternoon and night shift. 5.6.1, however, doesn't refer to an afternoon shift at all, but introduces a new concept of an evening shift, which is a shift concept that is not contained within the award. It would appear, from my understanding, that what appears to have happened is that the concept of the afternoon shift that's in the award has been replaced by the concept of the night shift.

PN44

The issue and the concern I have is that some employees who would fall within the definition of an afternoon shift employee under the award would only be considered to be non-shift or day workers under the terms of the agreement, and whereas under the award those employees would receive 15 per cent afternoon shift for the whole of the shift, those employees would receive nothing under the agreement because of the way in which the evening shift has been defined.

PN45

That may or may not be a problem, depending upon whether the amount of money that is paid to an employee whose shift finishes sometime after 6 pm and before 9 pm is in a position of either being better off, equal to or worse off than if they were employed under the award, and some simple calculations would be able to address that issue. Equally, to the extent that anything might flow from that, there's a sense that there is a potential but not necessarily a real problem, and an undertaking might be able to be given that would simply address that issue. They're the issues I wished to raise. They're the only issues I've got at the moment, but I think that the critical ones relate to who's going to be covered by this agreement. Everything else will fall into place once that question is properly answered. Before you respond, Mr Wainwright, did you wish to assist the tribunal by identifying anything else that you've got a concern with?

PN46

MR WAINWRIGHT: Well, Commissioner, the difficulties you point out in the agreement that relate to the lack of a classification structure, there is a clear dichotomy between what - - -

PN47

THE COMMISSIONER: No, that's not the question I - do you have anything additional?

PN48

MR WAINWRIGHT: Yes.

PN49

THE COMMISSIONER: What's the additional?

PN50

MR WAINWRIGHT: The additional is that in the award the classification structure is listed at clause 18 and is separate to the types of employment that this agreement calls classifications. So the types of employment are listed at clause 10, 11 and so forth in the award.

PN51

THE COMMISSIONER: That is simply the same issue that I've raised, just restated.

PN52

MR WAINWRIGHT: Yes, but in the absence of there being classifications in the agreement itself, then you're simply unable to do the BOOT test.

PN53

THE COMMISSIONER: Yes, and that's the point I've already made to Mr D'Abaco.

PN54

MR WAINWRIGHT: So in terms of the agreement documentation, I have nothing else.

PN55

THE COMMISSIONER: Thank you. Mr D'Abaco?

PN56

MR D'ABACO: Are there any other issues which my friend has to raise?

PN57

THE COMMISSIONER: That's an invitation, Mr Wainwright.

PN58

MR WAINWRIGHT: Yes. Commissioner, our concerns are about the quality of the agreement itself being well below the standards of the industry. But our concern that we wish to put to you today relates to the company's failure to meet the requirements of the Act in having the agreement approved by employees. What has occurred since we've seen that this matter has been listed is that we asked our organiser, Mr Jason Bell, to speak with employees of the company and to gain from them their view of this application, and what he has been told directly by one employee of the company on behalf of others is that the employees were unaware of this application.

PN59

He's been told that there are approximately five employees at the company. He's been told that the employees had no access to the agreement. He's been told that no vote had been requested on the agreement, and clearly flowing from that, that no vote had been taken on the agreement, and certainly he believes, from the discussions that he's had with the employee, that the employees haven't had the notice of representational rights, and it's certainly not clear that the employees signed bargaining notices giving Mr - and I apologise, I can't pronounce your name.

PN60

MR UTHENWOLDT: Uthenwoldt.

PN61

MR WAINWRIGHT: Giving Mr Uthenwoldt the ability to act as the employee bargaining representative. There's also a lack of clarity around Mr Uthenwoldt's status as whether or not he is an employee of the company or if he's a subcontractor providing services to the company. Commissioner, our - - -

PN62

THE COMMISSIONER: That last point would be totally irrelevant.

PN63

MR WAINWRIGHT: Well, not irrelevant if he's being classed amongst the number of people who are said to have approved the agreement, and that's not clear to me right now. Certainly if he's not amongst that class, it is irrelevant, his status as an employee or a subcontractor. Yes.

PN64

THE COMMISSIONER: But that status is irrelevant as to whether or not he is an appointed bargaining representative.

PN65

MR WAINWRIGHT: Yes, you can appoint whoever you want, Commissioner. I don't quibble with that at all. Commissioner, Mr Bell is one of our regional Victorian organisers, and he is right now organising in regional Victoria. He has prepared a witness statement that I would seek to hand up. Mr Bell has been available for most of the day, depending on where he is in regional Victoria, on the phone, and we do make him available to give evidence over the phone now, or we would seek an opportunity for him to give evidence at a time to be directed by yourself. But if I could hand up his statement now?

PN66

THE COMMISSIONER: No, I won't need it just at the moment.

PN67

MR WAINWRIGHT: Yes. Well, for the moment that's all that I wish to put, Commissioner.

PN68

THE COMMISSIONER: Thank you. Mr D'Abaco?

PN69

MR D'ABACO: This is news to me and also to my client, and obviously the matters which are raised from the bar table by my friend fly in the face of the statutory declaration - - -

PN70

THE COMMISSIONER: Yes.

PN71

MR D'ABACO: - - - and in those circumstances I really can't take it any further. It's a matter on which firstly I would need to obtain instructions before I - - -

PN72

THE COMMISSIONER: Yes. I think that's most appropriate. The address given for the applicant in this matter is Ballarat. Is that where the premises are located?

PN73

MR D'ABACO: Yes, sir. I'm instructed yes.

PN74

THE COMMISSIONER: The premises are obviously not located at Post Office Box 1288, Bakery Hill. Are the premises located at (address supplied)?

PN75

MR WALKER: That's my residential address. It's actually 20 Corbett Street.

PN76

THE COMMISSIONER: 20?

PN77

MR WALKER: Corbett.

PN78

MR D'ABACO: Corbett - - -

PN79

THE COMMISSIONER: C-o-r-b - - -

PN80

MR WALKER: C-o-r-b-e-t-t.

PN81

THE COMMISSIONER: Ballarat?

PN82

MR WALKER: Yes.

PN83

THE COMMISSIONER: Mr D'Abaco, given the seriousness of the assertions, and they are no more than mere assertions at this stage - I'll certainly give you the opportunity of seeking some instructions from your client, but given the seriousness of them, I would want to examine the company, the opponent of the statutory declaration, but I would also want to examine employees. There's only four of them. I would be quite happy to arrange at some reasonably short notice, a hearing in Ballarat. I don't want to put the company to the expense of having to come to Melbourne with its employees. I also - because this is not necessarily going to be a lengthy examination of the employees to ascertain whether or not they received the notice of employee representational rights, received the copy of the agreement or had access to a copy of the agreement for the access period, were given notice of the time, place and method of ballot.

PN84

I mean, those sorts of questions - and they're the only questions which I would need to examine, because they're the specific assertions made by Mr Wainwright - would be relatively quick. I would be quite happy to accommodate the company by arranging a hearing in Ballarat either early in the morning or late in the afternoon so that it has least impact upon the business of the employer. But I'm putting on notice that given the language of the matters that have been brought to my attention, I will adopt - this is even in the absence of any further involvement from the CFMEU - I will adopt an inquisitorial role in relation to whether or not the requirements of the Act have been met.

PN85

So whether or not you want to put Mr Walker in the witness box, I'll require him to give evidence, and even if no-one else wants to examine him, I will, and I would do it with each of the employees and with the bargaining representative, if the assertion is that the bargaining representative may have been a person who approved the agreement but is not an employee. Much of this, though, will depend upon which instructions you get and also upon what assistance you may be able to give to the tribunal in terms of managing this matter. On that basis I will give you ample opportunity to seek instructions. If you wish to propose a course of conduct to the tribunal that would enable the tribunal to deal with these matters and to deal with the assertions being raised by Mr Wainwright, please communicate with me, but equally communicate everything back to Mr Wainwright.

PN86

I presume that the CFMEU, once having sought permission to appear in this matter, will want to continue that if I hold any further hearings, and the more it can be managed the better. It also would give you the opportunity of dealing with those issues that I've raised about the contents of the agreement. It may very well be that the whole matter can be dealt with in one detailed hearing, and as the employer is probably already aware, it's easy enough to withdraw these applications and simply restart the process if you want to.

PN87

But bear in mind that even if the employer does do that, files the notice of discontinuance in this matter and seeks to refile it, I would flag with you that I will make clear to the head of the panel that should a matter involving this company be refiled that enough issues have been raised about process that I would ask that the file be allocated to me so that those issues of process can be properly examined and I would probably - even if a new application was filed, immediately list it for hearing in Ballarat, which would avoid the parties wasting any further time with a hearing in Melbourne.

PN88

It would also mean that it would be able to be dealt with very quickly and, if everything is in compliance with the Act, enable speedy approval of the agreement, if that was a course of conduct that you probably want to undertake, of withdrawing this application and refiling it. The employer is also entitled, even if it wants to withdraw the application and refile it, to ask that I deal with the matter to avoid any one else getting lumbered with it, and also to avoid - - -

PN89

MR D'ABACO: But that's not an issue, Commissioner. The issues which you raised are strictly confined to the requirements of the Act.

PN90

THE COMMISSIONER: Yes. No, it's just that sometimes when these files come in, they just go off to anyone - - -

PN91

MR D'ABACO: Yes.

PN92

THE COMMISSIONER: It's the difficulty that if a person - if another member of the tribunal is not aware of the history, they will spend more time than I would need to spend on it, whereas if I got the file, I would list it - - -

PN93

MR D'ABACO: Yes.

PN94

THE COMMISSIONER: - - - as urgently as possible, in Ballarat, to ensure that the matter was able to be resolved as quickly as possible.

PN95

MR D'ABACO: Well, can I indicate to you, Commissioner, that given the issues which you have raised prior to my friend agitating the issues which he has raised, my mind was already drawing towards, perhaps, a form F50 being filed or an agreement to be prepared which addresses the tribunal's concerns and for the process to be undertaken once again. That's notwithstanding the concerns which have been raised by my friend, the assertions which he's made from the bar table, in terms of when the proper procedure and so forth is being followed. That's obviously a matter which I'll need to get some instructions upon, refiling but also the matters which my friend has raised. As I understand what you've put to me, Commissioner, even if that course of action is adopted by the applicant, you're still of a mind to conduct a hearing and to seek evidence from the relevant employees and that's obviously a matter which is open to the tribunal.

PN96

THE COMMISSIONER: My intention to conduct a hearing is in relation to this matter.

PN97

MR D'ABACO: Yes.

PN98

THE COMMISSIONER: Given that you understand that concerns that have been raised by Mr Wainwright, they're concerns that can only relate to this matter - - -

PN99

MR D'ABACO: Yes.

PN100

THE COMMISSIONER: - - - because it's the past conduct, it's not future conduct. If the employer was minded to file a form F50 and start the process again, in order to avoid an immediate start in Ballarat, it may very well be that given that there are only four employees, that statutory declarations filed by the employees - - -

PN101

MR D'ABACO: The employees is what - precisely what I was thinking, sir.

PN102

THE COMMISSIONER: - - - but - and there's always a "but" in this - I have seen other matters where I've invited that course of conduct, that the views of the employees being made known to me through statutory declarations, and when I get 10 statutory declarations and the only thing that's different is the signature, I still have to go through the process of examining the employees because it's clear that 10 workers don't speak the same language, they don't have the same turn of phrase.

PN103

So when 10 identically worded statutory declarations are put to me, someone else has prepared them for them and someone has generally asked them to simply sign it. They may read it, they may agree with it, but I then still have to go through the process of verifying that what is in that sort of statutory declaration is words of the employee. Sometimes a poorly spelt, handwritten statutory declaration by an employee - and given that there's only a couple of issues that have to be raised - is much easier for me to deal with because it's just what the employees say. As long as it has got the right heading and the right jurat, then that's more than sufficient. So keep that in mind if you want to go down that path. Do you have anything else, Mr D'Abaco?

PN104

MR D'ABACO: No, sir.

PN105

THE COMMISSIONER: Thank you. Mr Wainwright?

PN106

MR WAINWRIGHT: Commissioner, just if I could, for the purposes of the transcript, I understand your decision not to accept the statement of Jason Bell at this point. I have provided it to my friend immediately before today's listing.

PN107

THE COMMISSIONER: Yes. If this application continues, Mr Wainwright, and if that's the preferred course of action from the employers, that we continue with this, I've put the applicant on notice, I'll hold a hearing in Ballarat. That would be an appropriate time for you to have your organiser there - - -

PN108

MR WAINWRIGHT: Yes.

PN109

THE COMMISSIONER: - - - you can adopt his witness statement in the witness box, it can be part of the process.

PN110

MR WAINWRIGHT: Part of the process. That's all we seek, Commissioner.

PN111

THE COMMISSIONER: But at the moment it's not necessarily because I think the way I've outlined possible courses of actions, it might simply not be necessary at this stage.

PN112

MR WAINWRIGHT: Yes.

PN113

THE COMMISSIONER: Mr D'Abaco, how long do you think it would take for your client to be able to come to a view as to whether or not this matter needs to be re-listed or whether or not it wants to go down a different path?

PN114

MR D'ABACO: We think in the next seven days, Commissioner.

PN115

THE COMMISSIONER: Okay. I'll tentatively book a Ballarat hearing within 14 days.

PN116

MR D'ABACO: Can I - - -

PN117

THE COMMISSIONER: No, I'll do it anyway.

PN118

MR D'ABACO: Yes.

PN119

THE COMMISSIONER: I'm just going to tentatively book it simply because I need, if anything happens, to be able to have something in my diary to keep it clear.

PN120

MR D'ABACO: Certainly.

PN121

THE COMMISSIONER: I'm saying it's no more than a tentative booking, but certainly seven days would be more than sufficient for you to then advise me - it's easier for me to cancel a hearing than it is to try and find one at short notice.

PN122

MR D'ABACO: The only reason I express reservation, sir, is that in the event that my instructions are that the applicant wishes to proceed with this application for the approval of the agreement, and obviously be hearing within 14 days in Ballarat, will not be an issue. However, if the instructions are to discontinue this application and for another agreement to be put, then obviously that hearing within 14 days will have to go by the by.

PN123

THE COMMISSIONER: Absolutely. Now, I'm simply conscious that if you decide to continue with this application, trying to find days and waiting seven days and then - - -

PN124

MR D'ABACO: Yes.

PN125

THE COMMISSIONER: - - - trying to find time is going to be even more difficult. If I can start to look at the diary now - - -

PN126

MR D'ABACO: Otherwise we'll be convening in Ballarat on Christmas Eve.

PN127

THE COMMISSIONER: You want to be?

PN128

MR D'ABACO: Otherwise we may well be convening in Ballarat on Christmas Eve.

PN129

THE COMMISSIONER: Yes, but do you want to be there on Christmas Eve?

PN130

MR D'ABACO: No disrespect to the fine citizens of Ballarat, but not particularly.

PN131

THE COMMISSIONER: I particularly don't want to be there on Christmas Eve. Is that all?

PN132

MR D'ABACO: Yes, sir.

PN133

THE COMMISSIONER: Okay. On that basis, thank you, and the tribunal stands adjourned.

<ADJOURNED INDEFINITELY [3.58PM]