AG2015/5390, Transcript of Proceedings [2015] FWCTrans 607 (5 November 2015)

TRANSCRIPT OF PROCEEDINGS
Fair Work Act 2009 1052627

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VICE PRESIDENT LAWLER

AG2015/5390

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

Application by Bendigo Kangan Institute

(AG2015/5390)

Bendigo Kangan Institute PACCT Staff Enterprise Agreement 2015

Sydney

2.00 PM, THURSDAY, 22 OCTOBER 2015

PN1

THE VICE PRESIDENT: Good afternoon. I note the appearances as announced by Alicia. The only concerns I have in relation to this agreement are whether or not the consultation clause in clause 15.5 and the flexibility clause in - or the individual flexibility arrangements clause in clause 9 meet the relevant requirements under respectively sections 205 and 203, and whether or not there's any undertaking that's required. I understand that the parties have no doubt endeavoured to meet the requirements of the Act, it's just being picky about whether or not the strict requirements are being met that.

PN2

Ms Maloney, have you got any views on this that you want to express at the moment?

PN3

MS MALONEY: Yes, thank you, your Honour. Can you hear me?

PN4

THE VICE PRESIDENT: Yes.

PN5

MS MALONEY: Yes, thank you. Your Honour, look it's my understanding that there could be an issue as to whether clause 15 complies with section 205 in terms of requirements for consultation about a change to an employee's regular roster or the work. We would acknowledge that. However, your Honour, I wasn't sure if today was just a mention or you were - - -

PN6

THE VICE PRESIDENT: I'm trying to - I'd like to dispose of it as promptly as possible, and if there's an agreed position on this, then it can be disposed of properly.

PN7

MS MALONEY: Okay, then I would wish to make some points if I could, firstly addressing the consultation clause, but I will come back to the IFA if that's acceptable to your Honour.

PN8

THE VICE PRESIDENT: Certainly.

PN9

MS MALONEY: In respect to the consultation clause, yes, we would - we'd agree at times it doesn't comply to the extent that it doesn't provide for consultation with respect to employers regular rostering on the hours of work and we understand that in accordance with section 205, if that's the case then the model consultation clause is taken to a term of the agreement.

PN10

THE VICE PRESIDENT: Under section 201, yes.

PN11

MS MALONEY: However, there's a couple of points we wish to raise. Firstly, in reading clause 15 there's the two, basically, provisions. One deals with the establishment and function of the agreed consultation committee, which is 15.1 to 15.4.

PN12

THE VICE PRESIDENT: Yes. We're not interested in those clauses, yes.

PN13

MS MALONEY: SO the provision we are talking about is the management change provision at 15.5 to 15.6.

PN14

THE VICE PRESIDENT: Yes.

PN15

MS MALONEY: What we do say though, is that if the Commission is of the view that the model consultation clause is to be incorporated or read into the - as a term of the agreement, we would say that that does not mean that 15.5 and 15.6 do not continue to operate, and your Honour, we refer you to a decision of - - -

PN16

THE VICE PRESIDENT: Well, but that's - but I don't - Ms Maloney, that's not a decision I'm required to make. I am only required to decide whether or not there's a consultation clause which meets the description in the Act. If there is, then that's fine. If there isn't, then 201 applies and I'm obliged to approve it, but noting that the model patient term applies.

PN17

Now, whether clause 15.5 and 15.6 continue to apply as well is not an issue that arises. If you've got some authorities that say that they do, well, that's all well and good, but my understanding of my role is that I'm - I've got to look at section 205, determine whether clause 15.5 and 15.6 meets it. If it doesn't, then I don't have any discretion. I must note that the model consultation term is taken under 205(2) to be a term of the agreement.

PN18

MS MALONEY: Yes, your Honour. I don't dispute that, your Honour, but we do just want to raise the point, because it's been a view expressed by at least one member of the Commission that in so reading in the - incorporating the model clause into the agreement, that it's done in substitution of the clause that's been agreed between the parties, and we say that that's not correct. So your Honour what we are saying is this, and we need to have it clarified, because we don't want the KI walking away from these proceedings thinking that it doesn't, that the - there's nothing - we understand that you are required, under the Act, if the clause doesn't comply with 205 that you are to incorporate the model clause. We understand that and you've got no discretion to that.

PN19

THE VICE PRESIDENT: Yes.

PN20

MS MALONEY: But the reason why I was taking you - referring you to a decision of Asbury DP is that in the agreement that her Honour was dealing with, its clause in a similar vein as our clause in 15.5 to 15.6, in that it deals with proposed changes and in the case she was dealing with, the clause deal with preliminary decision in respect to proposed changes. So we say that 15.5 and 15.6 continues to apply in respect to proposed changes, and whilst another clause is (indistinct) it's been incorporated, 15.5 and 15.6 has continued to apply to the extent of any inconsistency with the model clause. Now, we do want to - we stress that position, your Honour.

PN21

THE VICE PRESIDENT: Well, Ms Maloney, there's a recording being made of this. I will get Alicia to order a transcript and your position will be noted, but I don't think there's anything on this application that raises as an issue for determination by me what the status of the remaining - of clauses 15.5 and 15.6 is. That's an issue to be taken up on another day, if the issue ever arises, because we don't know that it necessarily will, be it has to be a dispute about some proposed change before this could ever be a live issue.

PN22

MS MALONEY: Well, I suppose, your Honour, it's just that - - -

PN23

THE VICE PRESIDENT: In other words, Asbury DP's decision may or may not be correct, but it just doesn't fall for consideration on the application for the approval of this agreement. The approval of this agreement requires me to look at 205 to determine whether or not the consultation clause meets the criteria, and if it doesn't, then 201 requires me to do something. There is nothing in the application that requires me to determine whether or not 15.6 and 15.6 continue to operate. That issue would only arise if there was some dispute where the continued operation of those clauses was in issue.

PN24

Please don't get me wrong, I am sympathetic to you wanting to have certainty around your position, I'm just not - I'm concerned that I don't - there's no proper basis to be entering into a debate about that issue on this approval application.

PN25

Well, the only reason I raise it, your Honour, is because Richards SDP seems to have a view that it does, and we have a different view.

PN26

THE VICE PRESIDENT: Richards or Asbury, or both?

PN27

MS MALONEY: Richards SDP in another matter came to the view that it substituted the clause, and we're of the view that it doesn't.

PN28

THE VICE PRESIDENT: I thought you said - - -

PN29

MS MALONEY: No, and I was relying on the position of Asbury DP in Mica Creek Power Stations Enterprise Agreement, which makes it clear that if you have a clause that requires consultation when the employer is thinking of - is proposing a change, as opposed to making a definite decision or having made a definite decision, then that clause can continue to operate as 15.5, 15.6 does - that clause can continue to operate, even though the model clause is inserted as a term, pursuant to - or seen to be a term pursuant to 205, and the clause that the parties have agreed to, as part of their bargaining, would continue to operate to the extent of any consistency with the model clause, and that's what we're saying.

PN30

THE VICE PRESIDENT: Well, your position is noted. It will be noted on the transcript and you will be entitled to take that point, if it ever arises. I have to say, on a strictly off the cuff view, I'm inclined to think you are correct about that, but the issue just doesn't arise for determination properly on this application. I mean, the effect of - if 205 in combination with 201 requires me to make the notation that 201 provides for, then I am obliged to make the notation, the impact of that on 15.5 and 15.6 will be as it is. That issue is just literally not before me. In other words, I will be trying some sort of hypothetical case that doesn't arise. You see, I presume that Richards SDP's decision arose in a context where there was a dispute where the union was seeking to rely upon the clause in the agreement that - - -

PN31

MS MALONEY: No, your Honour, it arose in a an application for approval, as does Asbury DP's. With the Asbury, it didn't (indistinct) approval, your Honour, and we just want to - because we don't want the KI thinking that by having the model consultation clause deemed to be a term of the agreement pursuant to section 205 that clause 15.6 to 15.6 no longer has work to do or somehow - and that's - I appreciate your Honour's desire to try and resolve this matter today, and the NTU at no stage wishes to delay the - - -

PN32

THE VICE PRESIDENT: No, no, I understand. Please, Ms Maloney, I - - -

PN33

MS MALONEY: Which is why we reserved the - we sought - reserved our right - - -

PN34

THE VICE PRESIDENT: Let me just ask Mr McIlroy what his attitude is.

PN35

Mr McIlroy, do you have a strong view on this issue.

PN36

MR McILROY: Well, I have a view, your Honour, and firstly I don't know why - I hope Ms Maloney doesn't think we're walking away, as she suggests, with some contrary view. I think we are of one mind. My position is that we wouldn't want to disturb the clause and that the clause when taken as a whole is sufficient for the purposes of section 205, and to the extent it may not be, we'd be prepared, because we are not looking to disturb the agreement that's been reached; that is, the terms of the clause, we would be prepared to give an undertaking that in the event that matters arose in relation to rosters and hours of work, that we understand that it would fall within, at least on its fact, would fall within the operation of the clause.

PN37

THE VICE PRESIDENT: Mr McIlroy, let me make a cri di couer. I am not responsible for the legislation. I have various private views about the sensibility of various parts of this legislation. But my duty is to just apply the terms of the Act faithfully and the Act allows, under section 190 for undertakings to be given in respect of nonconformity with various requirements of section 185, 186 and 187.

PN38

But section 205 and 201 are not things that operate subject to undertakings. So even though you are prepared to offer it and it's recorded on the transcript that the Institute's position is that it would wish to continue to adhere to 15.5 and 15.6, that doesn't absolve me of the duty to ask myself the question whether or not the requirements in 205 are met and then, if they're not, to give effect to 201, and what the consequences of that are for the status of 15.5 and 15.6 with all due respect to Richards SDP are what they are and they cannot be determined in a decision on an approval application.

PN39

They certainly can't be binding, as between the parties on an approval application decision, because the effect of the notation under section 201 is not an issue that arises on this application. If the requirements in 205 are not met, I am obliged under 201 to make the notation and the consequences of that are what they are. To the extent that it is any utility to you,, my off‑the‑cuff view is that they don't operate in substitution unless there's a clear conflict, in which case the model consultation clause would override it.

PN40

But they can operate together, and again with respect to Richards SDP, if he's done what Ms Maloney says he's done, it's just not - it's not a relevantly justiciable matter that's appropriate for an approval agreement decision to try and specify what the effect of the notation is.

PN41

That's a separate legal question that would arise if and when there's ever a dispute about the terms upon the continued operation of those clauses 15.5 and 15.6.

PN42

MS MALONEY: That's why I just referred to the decision of Asbury DP, in that in making the decision and the approval of the agreement in that matter, her Honour stated that the clause - while it's negotiated between parties - dealt with a preliminary decision and she noted in accordance with the agreement that the consultation term agreed by the parties would continue to operate according to its term when a preliminary decision was made, except to the extent of all inconsistencies with the incorporated model term, and I was just - I was just referring -- -

PN43

THE VICE PRESIDENT: Well, I - - -

PN44

MS MALONEY: I was just referring you to that (indistinct) what we were trying to put.

PN45

THE VICE PRESIDENT: To the extent that it's relevant, I prefer the view expressed by Asbury DP, rather than the view apparently expressed by Richards SDP, but again I say my present disposition is that this is just an irrelevant issue for the purposes of the approval application. Either I've got to make the notation or I don't and if I make it, the effect is what it's going to be, and I can't pre-empt that by defining it in an approval decision. I simply can't - - -

PN46

MR McILROY: Does the Act require, your Honour - if I may - does the Act require such specificity to the terms of the consultation provisions and its broad term - - -

PN47

THE VICE PRESIDENT: Sorry, Mr McIlroy. I understand where you are coming from. You say that this 201 issue doesn't arise, because on the proper construction of clauses 15.5 and 15.6, the requirements of 205 are met. The difficulty with that is that there's no reference in there to changes to rosters or ordinary hours of work, and it's a bit hard to stretch the language of this to see an obligation arising in relation to those matters. Because it's focused on major changes and significant effects, which is what section 205(1)(a)(i) is concerned with, but it doesn't also deal with the problem of - I mean, section 205(1)(a) draws a distinction between major workplace changes that are likely to have a significant effect on employees and the concept of a change to their regular rostered ordinary hours of work. Now, changes to rosters and ordinary hours of work can have a significant effect on employees, but the Parliament has seen fit to choose to - it may or may not have a significant effect. It may have one, it may not have, but Parliament has chosen to separate out change to regular rosters and ordinary hours of work, whether it has a significant effect or not, as something that needs to be subject to consultation. No matter how one massages the language of 15.5 and 15.6, I just don't see that it's there.

PN48

MR McILROY: There's no roster provisions in - there's ordinary hours, but - I don't have that in front of me, but there's no rosters per se - rostering provisions per se.

PN49

THE VICE PRESIDENT: Okay. Let's forget about rosters the, ordinary hours is enough. Mr McIlroy, I'm not trying to be difficult here - - -

PN50

MR McILROY: No, I'm just trying - - -

PN51

THE VICE PRESIDENT: It's about trying to give effect to what I perceive to be my duty. If it was a matter of discretion, I would simply approve this as it is, because we've got mature bargaining parties here who have reached an agreement that on its face is bona fide. That ought to be enough.

PN52

MS MALONEY: Your Honour, can I just draw - just on what Mr McIlroy has put to you, can I just draw your attention to - I'm not quite sure it will satisfy, but I just draw you attention to 7.5.1 in definition of significant effects on the second dot point, "Alterations include hours of work." (Indistinct) Yes, I'm not sure about that one.

PN53

THE VICE PRESIDENT: Yes.

PN54

MS MALONEY: Your Honour, it - can I just make the point that - - -

PN55

THE VICE PRESIDENT: Can I just try and get to the - what's the - - -

PN56

MS MALONEY: Can I just refer - I'll just give you the reference for your own information, to Asbury DP's decision?

PN57

THE VICE PRESIDENT: Yes.

PN58

MS MALONEY: {2015] FWCA 5649.

PN59

THE VICE PRESIDENT: Yes, but Ms Maloney, understand this, a recitation by a member in an agreement approval decision about what the effect of a notation under section 201 has on the existing clauses cannot be binding or determinative. It cannot be part of the ratio decidendi of the decision it has to be over, and it has to be - - -

PN60

MS MALONEY: Yes, I understand that, your Honour. I just - I just (indistinct) I suppose we were trying to address, because it's our view and, look, we would obviously, I'm sure, both the KI and the NTU would prefer if the clause, as it was, would just continue as it is without the incorporation of a model consultation clause that would be our preferred position, but - - -

PN61

THE VICE PRESIDENT: Ms Maloney, can I just - - -

PN62

MS MALONEY: But having said that, if the Commission is of the view that doesn't comply with section 205, it's the NTU's strong view that there's nothing in section 205 that suggests that the incorporation of the model clause displaces the clause that the parties have agreed upon.

PN63

THE VICE PRESIDENT: Well, as it happens - - -

PN64

MS MALONEY: That's the (indistinct).

PN65

THE VICE PRESIDENT: As it happens, off-the-cuff, I agree with you, but I just repeat that that's just not an issue that arises. The effect of the notation is the effect that it has and the only issue here is am I obliged to make the notation or am I not.

PN66

MS MALONEY: That's right.

PN67

THE VICE PRESIDENT: And the effect that it will have will be what it is. Can I just say, there's a further problem as well, which is probably not one that you find very palatable, Ms Maloney, but section 205(1)(b) requires allowing for representation of those employees for the purpose of that consultation. Now, I am afraid I struggle to see where there's allowance for representation. There's a notation about consulting with the NTU, but employees are entitled to be represented by people other than the union. Employees are entitled to have a choice about representation and the clause suffers from that defect as well.

PN68

MS MALONEY: Your Honour, we'd have a view on that, if you wish to hear it.

PN69

THE VICE PRESIDENT: Yes, go ahead.

PN70

MS MALONEY: Well, your Honour, our position on the issue of representation is that there is nothing in section 205 - or actually (indistinct) 205, there's nothing in the section which suggests that the clause cannot describe who may or may not be a representative. It simply says the clause must allow for representation of employees - - -

PN71

THE VICE PRESIDENT: Ms Maloney, please, section 205 relevantly says an enterprise agreement must include a term that allows for the representation of those employees for the purposes of that consultation. Now, you point to me the words that allows for the representation of employees for the purposes of the consultation. Which words - - -

PN72

MS MALONEY: But representation, under the agreement the consultative committee is responsible for discussing issues arising from (indistinct) in the agreement and those discussions in terms of management change goes through the consultative committee but with the NTU, (indistinct) with those employees and it will stay with the NTU through the consultative committee.

PN73

THE VICE PRESIDENT: Yes.

PN74

MS MALONEY: And your Honour, can I also make the point - - -

PN75

THE VICE PRESIDENT: Ms Maloney, I might agree with you that as a matter of public policy it would be highly desirable for the NTU to be able to be the sole representative, but that's not what the legislation or the policy - - -

PN76

MS MALONEY: (Indistinct) submissions on the point - - -

PN77

THE VICE PRESIDENT: Yes.

PN78

MS MALONEY: Those are my - two of the points I raise, before I take you to a decision, but 15.3:

PN79

The consultative committee comprises three representatives from the Institute and three local branch representatives of the union. It is recognised that from time to time additional representation on behalf of the Institute management and staff or the union may be involved,

PN80

So this is recognition of additional representation on behalf of Institute management and staff or by union, that's correct, but the second point we raise, and we do resubmit our submission that the clause doesn't prevent the parties from identifying who does the representation, and I just draw your Honour to the decision of the Full Court of the Federal Court in United Firefighters' Union of Australia v Country Fire Authority Re AEU and I can give your Honour the reference. I wish I could find out the paragraph number, but I've got the page number.

PN81

THE VICE PRESIDENT: That's okay.

PN82

MS MALONEY: But your Honour, in that matter, the Victorian government, at the time, raised a number of objections to various clauses contained in the UFU's agreement.

PN83

THE VICE PRESIDENT: I remember it, I think I was part of the Bench.

PN84

MS MALONEY: Yes, that's right and it went to the Full Court of the Federal Court, and one of the issues they raised was the issue that some of the clauses were discriminatory.

PN85

THE VICE PRESIDENT: Yes.

PN86

MS MALONEY: One issue they raised was that some of the consultation clauses - three clauses in total - were inconsistent with section 205. Now, section 205 (indistinct) refers to the third 2014 amendment, so it didn't have the requirement to consult over change to rosters to hours of work, but it did have (indistinct) the requirement to provide for - have a term that provided for the representation of employees, so it was the original 205. The state government at the time (indistinct) those clauses didn't allow - didn't provide for, didn't comply, because the clause - the provision of consultation went through a committee comprising of members of the UFU and the Country Fire Authority. Now, in that decision - so yes, the committee comprised of (indistinct) employee representatives are determined by the represented parties - that's what the decision said or that's what the agreement said, I should say. And the agreement, while it doesn't define "party", a reading of the agreement makes it clear that the parties are the UFU and the CFA.

PN87

Now, in that decision, the Full Court of the Federal Court held that the clauses in question did comply with section 205 and found that they were compliant because they did allow - they did allow for representation of employees.

PN88

The other point we make, your Honour, is that the -this provision and the explanatory memorandum itself makes it clear that representation can be provided by a union and an employer organisation, and we say that the provisions of the Fair Work Act are in contrast to what applied under the WorkChoices legislation, in particular the (indistinct) regulations in respect to what constituted prohibited content and under that legislation the rights of an organisation or employers or employees participating or to represent an employee in the pursuit of that procedure was prohibited unless the organisation was the representative of the employer's or the employees' choice.

PN89

So that legislation did prescribe who could represent an employee - in that case it was dispute procedure. We say that this legislation does not prescribe that and we rely on the Full Court of the Federal Court's decision, and I can give you the reference to that decision, your Honour.

PN90

THE VICE PRESIDENT: Thank you.

PN91

MS MALONEY: It is [2015] FCAFC 1 8 January 2015. I have a page number, but I couldn't find the paragraph number.

PN92

THE VICE PRESIDENT: No, page number if fine.

PN93

MS MALONEY: It's the page number on my print. That's the only problem. The paragraph numbers, your Honour, commence at 237 to 242.

PN94

THE VICE PRESIDENT: Yes, thank you, Ms Maloney.

PN95

MS MALONEY: And we also refer to the explanatory memorandum which we say does not suggest that those who negotiate the agreement cannot place restrictions on who can be representatives. Your Honour, there have agreements that have been approved by the Commission in the higher education sector where restrictions have been placed on representation in respect to dispute procedure. For example, we have agreements where dispute procedures preclude either the employer or the employees being represented by a barrister or a solicitor and those restrictions are - those agreements have been approved as recently as the Federation University of Australia which was approved by Johns C about two weeks ago or three weeks ago. It came into operation last week.

PN96

THE VICE PRESIDENT: Okay. Well, look, that's really a supplementary point in any event, and I hear what you've said, Ms Maloney and I will go off and have a look at that decision and consider it. Is there anything more you wanted to say on the consultation issue?

PN97

MS MALONEY: Well, the (indistinct) on the consultation issue, your Honour, is that the - in (indistinct) the legislation, one of the objectives was that one of the criterion (indistinct) legislation (indistinct) objectives of the Act and we say that the objectives of the Act make it clear what obviously the - that (indistinct) determines wages and conditions - employment conditions generally of the enterprise agreement and that to interpret section 205 as providing for, as we said, providing for the model consultation term to replace the consultation term that's been agreed between the parties we say is contrary to the object of the Act and we take on board, your Honour, that it doesn't arise in this matter.

PN98

THE VICE PRESIDENT: Well, as I say, I can only repeat again that off-the-cuff, I am with you on that issue, but as I say, it doesn't arise. I'm quite confident it doesn't arise and that the opinions that have been expressed by others are strictly unnecessary and there's no - and unbinding, and there's no utility at all in expressing them. They don't, they won't, they can't inhibit a future Commission constituted differently, let alone a Full Bench from coming to a different view.

PN99

MS MALONEY: Yes, your Honour. Obviously, we just make the point - we just raise the point that, as we say, the (indistinct) in respect to the issue of representation doesn't suggest - doesn't say that - states that a - doesn't suggest that the parties to the agreement can decide or make those restrictions on who can be the representative. But we just say that on those points.

PN100

THE VICE PRESIDENT: Thank you, Ms Maloney. Mr McIlroy, is there anything more you wanted to say on the consultation clause?

PN101

MR McILROY: No, I support the union - the thrust of the union's position.

PN102

THE VICE PRESIDENT: Can I just say, if I - unless I feel absolutely legally constrained, I wasn't to endorse your joint position. It's only a question of whether or not I feel that my duty requires me to give effect to the legislation in a particular way that's consistent - that's contrary to that joint position. I appreciate that joint position, and if I can in good conscience come to a view that is consistent with the joint position, then there will be no notation under 201.

PN103

MR McILROY: The only issue I - and I think it is covered - is that it's not question directly at 205, but to ensure that an employee covered by the agreement, when reading the agreement can see that they are not precluded from these processes.

PN104

THE VICE PRESIDENT: Yes. Well, perhaps one way of doing this is that I note the joint agreement of the parties that the proper construction of 15.5 and 15.6 is that each of those things is allowed for.

PN105

MS MALONEY: Can I say - it's my view it's already in 15.3.

PN106

THE VICE PRESIDENT: Yes.

PN107

MS MALONEY: Because - - -

PN108

THE VICE PRESIDENT: No, Ms Maloney, you don't need to - you're pushing against an open door here. I would like to be able to accommodate the joint position of the parties, if that's what the Act allows, and I was just proposing that one of the ways of doing that is to note that an issue arose as to whether or not 205 requirements were met, but the parties jointly agree that on the proper construction of clause 15, those requirements are met.

PN109

MS MALONEY: That's right.

PN110

THE VICE PRESIDENT: Are you content with that course, Ms Maloney?

PN111

MS MALONEY: Your Honour, I suppose my view is that - - -

PN112

THE VICE PRESIDENT: By the way, that delivers the outcome you want.

PN113

MS MALONEY: Yes, but the right is consistent with the agreement. I say it is already, 15.3 reads it.

PN114

THE VICE PRESIDENT: Of course.

PN115

MS MALONEY: 15.3, I - - -

PN116

THE VICE PRESIDENT: Mr McIlroy, are you happy with that course?

PN117

MR McILROY: Yes, your Honour.

PN118

THE VICE PRESIDENT: Okay, fine. Well, let's turn to the flexibility clause. Ms Maloney, do you want to - you seem to be full bottle on all of this.

PN119

MS MALONEY: Your Honour, this one I'm not clear about, because it's not - we're not clear what the issue in respect of the (indistinct). So what's the concern that your Honour has?

PN120

THE VICE PRESIDENT: Okay. Would you just pardon me one minute? I'm just looking for a note I had. Look, I have mislaid the note about this, but - - -

PN121

MS MALONEY: Can I - - -

PN122

THE VICE PRESIDENT: But I have a recollection of reading it and having a concern that there was one of those multitude of requirements that wasn't met, but as I look at it now, it does seem to be okay. So I have your - - -

PN123

MS MALONEY: At this point, your Honour, the flexibility agreement clause contained at clause 9 of this agreement is based on the existing Kangan Institute of TAFE PACCT Staff Enterprise Agreement. This is a rollover agreement.

PN124

THE VICE PRESIDENT: Which has been approved. Okay. So - - -

PN125

MS MALONEY: Right. It was approved by Smith DP on 14 September 2012 and took effect on 26 September 2012.

PN126

THE VICE PRESIDENT: Okay, say no more. Mr McIlroy, do you agree?

PN127

MR McILROY: Yes, your Honour.

PN128

THE VICE PRESIDENT: Okay, fine. Well, I think that concludes the matter and I will approve the agreement and I will note the joint position of the parties along the proper construction of clause 15, each of the requirements in 205 is met explicitly or implicitly and that therefore those rights that 205 guarantees are guaranteed by clause 15 and that way it can be approved without a notation and everybody should be happy.

PN129

MS MALONEY: Thank you, your Honour.

PN130

THE VICE PRESIDENT: You happy with that course, Ms Maloney?

PN131

MS MALONEY: Yes, your Honour.

PN132

THE VICE PRESIDENT: Mr McIlroy, you're happy with that course?

PN133

MR McILROY: Thrilled, your Honour.

PN134

THE VICE PRESIDENT: Very good. Thank you very much, I think that concludes the matter. Thank you for your assistance and good afternoon.

ADJOURNED INDEFINITELY [2.35 PM]