EM2013/62, Transcript of Proceedings [2015] FWCTrans 7 (13 January 2015)

TRANSCRIPT OF PROCEEDINGS

---

Fair Work Act 2009 1051222-1

VICE PRESIDENT CATANZARITI
DEPUTY PRESIDENT SMITH
COMMISSIONER JOHNS

EM2013/62

Sch. 6, Item 4 - Application to make a modern award to replace an enterprise instrument.

Commonwealth of Australia acting through the Minister Assisting the Prime Minister for the Public Service
and
CPSU, the Community and Public Sector Union; Association of Professional Engineers, Scientists and Managers, Australia, The-Australian Capital Territory Branch; "Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU); Australian Nursing and Midwifery Federation; Australian Salaried Medical Officers Federation-Australian Capital Territory Branch; Australian Municipal, Administrative, Clerical and Services Union-Taxation Officers Branch; The Australian Workers' Union - Greater New South Wales Branch; Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia; Construction, Forestry, Mining and Energy Union; Health Services Union; National Union of Workers-Victorian Branch; Transport Workers' Union of Australia; United Voice; Media, Entertainment and Arts Alliance-Australian Capital Territory Branch
(EM2013/62)
Australian Public Service Award 1998

(ODN C NO. 23867 OF 1995)
[AW766579 Print Q7548]




Canberra

10.04AM, TUESDAY, 16 DECEMBER 2014

Continued from 15/12/2014

PN347

THE VICE PRESIDENT: Thank you. Mr Benfell?

PN348

MR L. BENFELL: Thank you, your Honour. Yesterday the Bench asked if we could provide a revised draft award in the terms that we would seek, and if I can just let the Bench know that the terms set out in blue are the terms the CPSU seeks which are not terms that the Commonwealth seeks. But the terms set out in - highlighted in yellow, for example at page 14 and 15 the apprenticeship arrangements are all highlighted in yellow. They are terms that we have agreed to adopt after considering the Commonwealth's submissions in relation to the various matters. So for example on page 17 at clause 11.3(a) we adopt the reference to:

PN349

The allowances that will be included in calculating an employee's ordinary hourly rate.

PN350

And they are the words that the Commonwealth proposed, and so any text highlighted in yellow are words that we have adopted from the Commonwealth. If I can start by saying that we also have amended our proposed definition of shift worker for the purposes of annual leave, and that's set out at page 42 of this document. That's clause 16.2 and 16.3, and after considering the views of the Commonwealth we decided to seek the provisions that are currently in the 1998 APS Award. That is, that the extra week's leave will be provided where the employee is regularly rostered to work on Sundays. We just bring that to your attention so that you're aware that that is a change in our position.

PN351

COMMISSIONER JOHNS: So you've gone from five days to six days? I think the Commonwealth said seven days, is that right?

PN352

MR BENFELL: An additional week, yes, five working days.

PN353

COMMISSIONER JOHNS: But regularly one must be a Sunday.

PN354

MR BENFELL: Yes.

PN355

COMMISSIONER JOHNS: Yes. Right.

PN356

MR BENFELL: And that's from the current award. I'll go into more detail when I get to that part. I just wanted to alert the Bench, and we alerted the Commonwealth to that change.

PN357

THE VICE PRESIDENT: Yes, sorry. I think we should put this formally on the record as an exhibit in your case. We'll call that exhibit A.

EXHIBIT #A CPSU REVISED DRAFT AWARD - MARKED UP

PN358

MR BENFELL: And I understand from your associate that you have copies of our submissions and evidence?

PN359

THE VICE PRESIDENT: Yes, so we'll make that all together as exhibit B I think, so keep them separate.

EXHIBIT #B CPSU'S WRITTEN SUBMISSIONS WITH SUPPORTING MATERIAL

PN360

MR BENFELL: Thank you. So as you know the CPSU supports the making of a modern enterprise APS Award and we support the submissions of the Commonwealth as to why the award should be made, subject to the matters we address in our submissions at paragraphs 3 and 4. We also support the submissions of the AMWU and we rely upon the submissions that we have tendered and the evidence of Mr Taylor and Ms Van Barneveld. Before I go to the contested matters I'd like to discuss how the Bench should approach the determination of this matter.

PN361

The Commonwealth have put it to you that when determining contested matters the starting point is the standard provisions in modern industry awards. We say that that's incorrect. The starting point is the 1998 APS Award, and we say the contents of that award should be retained unless there are compelling reasons not to do so. As the Bench is aware, this is an important decision where one of the first modern enterprise awards is to be made, and it's going to inform the parties to the other enterprise awards in the Commonwealth that we've made application for, and also the ACT Government and NT Government Public Sector Awards.

PN362

We say that the legislative intent set out in the modern enterprise award objective and the modern award objective essentially requires the Commission to provide a modern APS Award which, together with the National Employment Standards, provide a fair and relevant safety net of terms and conditions. But a modern enterprise award is a special class of a modern award. It's a subset of a modern award and Parliament obviously intended that enterprise awards can provide different entitlements than modern industry awards. The modern enterprise award is a special safety net tailored to the needs of the enterprise, and we refer to our submissions at paragraph 15 which refers to the Full Court decision in Yum! where they acknowledged that the modern enterprise award objective can provide a different safety net than industry awards.

PN363

Also we rely upon the explanatory memorandum which we set out at paragraph 17 of our submissions, where they also identify that modern enterprise awards can provide a different safety net. We also rely upon the Full Bench decision in Coleambally Irrigation Cooperative (2014) FWCFB 2170. It's at tab 10 of the Commonwealth's exhibit, and at paragraph 70 of that decision the Bench is discussing the modern award objective and the words that have been developed and tailored, and they say at paragraph 70 in the second-last sentence, and I quote:

PN364

The wording of item 6(2) does not suggest that we start from a “clean sheet”. It very much suggests consideration is to be given to the existing terms in the enterprise award that are said to be tailored. It is not apparent that this exercise is one allowing, in effect, the conduct of an arbitration as to the terms and conditions of the modern enterprise award divorced from, and uninformed by, the existing terms and conditions.

PN365

There is nothing in the legislation to suggest that in making modern awards the actual safety net should be reduced when compared with the current safety net unless there is a compelling reason to do so, and we know from fact that the legislation appears to provide otherwise where in Division 3 of Schedule 3 of the Transitional Act it provides for the modern - sorry:

PN366

The enterprise instrument modernisation process is not intended to result in the reduction of take-home pay.

PN367

Now we're not suggesting that what the Commonwealth is proposing will result in a reduction of pay but if you look at the legislation overall there is no intent at all, or indication, that this exercise is an exercise to reduce the safety net.

PN368

COMMISSIONER JOHNS: Would the change in the span of hours result in a reduction in some people's pay?

PN369

MR BENFELL: Not immediately, Commissioner, because most APS employees are subject to or covered by enterprise agreements and that's where those matters are negotiated. If they were not covered by an agreement, yes it's possible.

PN370

COMMISSIONER JOHNS: I think the evidence of Ms Bull is that 20 per cent are not covered by agreements.

PN371

MR BENFELL: Of those 20 per cent - - -

PN372

COMMISSIONER JOHNS: Sorry, that's the ordinary hours issue.

PN373

MR BENFELL: Yes.

PN374

COMMISSIONER JOHNS: I'm sorry, yes.

PN375

MR BENFELL: But of course it's important for the BOOT test. That's the fundamental need for an adequate enterprise award safety net. So the Bench has to apply the modern award objective and in a sense this exercise is similar to the making of the modern industry and occupational awards. That exercise was largely an exercise of rationalisation a myriad of federal and state awards, both minimum and paid rates, into a rational and consistent set of awards covering all industries and occupations.

PN376

That rationalisation sometimes involved an averaging effect but the AIRC Full Bench appeared to adopt an approach in that exercise that if an entitlement was in a modern award and it is still relevant, and there's no compelling reason to remove or reduce those entitlements, then those entitlements should be retained in the modern award, and that was the fairest approach, and examples of that we set out when we discuss the hours and training leave for dispute settlement and the span of hours decisions in our submissions. But this exercise is also fundamentally different from the modern industry award-making process.

PN377

In this exercise we must look at the history of employment arrangements in the APS and make an award tailored to that enterprise and that history. So we say when considering what should be in or out of the modern APS Award, firstly we need to consider whether each contested term reflects employment arrangements developed for the APS. We say prima facie the terms of the 1998 award set out the employment arrangements developed for the APS.

PN378

Secondly, we need to consider whether it is fair and relevant, taking into account the modern award objective. Thirdly, if the contested term satisfies (1) and (2) which I just set out, then it should be made a term of the modern enterprise award. We say that each of the contested matters except for the superannuation matter, which I will deal with later, each of those matters that we seek to have in the award that the Commonwealth doesn't, are in the 1998 APS Award and prima facie have been developed to reflect employment arrangements in the APS. We also say they are fair and relevant.

PN379

The Commonwealth has a different view, as they have put in their submissions and as they repeated yesterday. They say that where there is a contest as to the conditions of the award the Commission should resolve that contest by having regard to the conditions in other modern awards. We refer to our submissions at 39 to 41 in relation to that. We don't agree with that of course. We say that if the relevant condition reflects employment arrangements that have been developed for the APS then the Commission should tailor that condition into the modern APS Award, provided it is fair and relevant to do so.

PN380

The Commonwealth's submissions at 3.7 continue with their assertion that the starting point in deciding the content are the minimum standards in the Fair Work Act, and terms and conditions provided in industry and occupational-based awards. They also say that they need to be unique to the enterprise. We deal with that in our submissions and show that uniqueness is not the test. If Parliament intended that to be the test, they would have put it in the modern award enterprise objective. They also say - sorry, the Commonwealth also says that you need to give primacy to the modern award objective and the minimum wages objective and adopt an approach that maintains fair and relevant minimum safety net across awards, rather than look at the particular history of this industry and the award.

PN381

We say that the modern enterprise award objective has primacy, not the modern award objective and the minimum wage objective. Where there is a general provision and a specific provision, we say that the specific provision that is the modern enterprise award objective has primacy. Finally in relation to the general approach to be taken, the Commonwealth in their submissions at 10.4 say that it is up to the union to show that the change the Commonwealth wants to make to the award - sorry, they say that it is up to the union to show that the changes they want is not fair; the onus of proof is on us to show that the reductions they seek are not fair.

PN382

We say that the party seeking the change from the current safety net bears the onus of - not onus but bears the obligation to provide compelling reasons. In relation to how this matter should be approached, we refer the Commission to a decision made last Friday by a Full Bench which Deputy President Smith is familiar with, and it relates to - - -

PN383

DEPUTY PRESIDENT SMITH: Of course. Schools.

PN384

MR BENFELL: - - - the School Services Officers (State Government Schools) Victoria, Award. I've provided a copy and it's (2014) FWCFB 7317. This decision was in a slightly different statutory context that related to the modernisation of State reference public sector transitional awards, and you'll see at page 2 at paragraph 3 that the state reference public sector modern awards objective is set out. We draw your attention to paragraph (2)(b) where that part of the legislation says:

PN385

…that State reference public sector modern awards may provide terms and conditions tailored to reflect employment arrangements that have been developed in relation to State reference public sector employers and State reference public sector employees.

PN386

Now that appears to be a repeat in a different context of the modern enterprise award objective, and we accept there are other criteria applying. But we note that the Commission decided to make that award, but in doing so had to arbitrate matters between the parties to that award. I draw your attention to paragraphs 16 and 17 where at 16 the issue of reimbursement of expenses and release for interview, and essentially the Bench appeared to be saying that the current clauses should be retained in accordance with the transitional awards. Similarly in relation to paragraph 17 relating to salaries, the Bench found that:

PN387

We consider that the structure in the transitional awards should be retained in this respect.

PN388

Now we say - and I'm sure Deputy President Smith may know better, but that indicates that when dealing with the modern enterprise award objective, as it is very similar to the requirements for the State reference public sector transitional awards, the Commission should adopt the current safety net, in that case the transitional award, in this case the 1998 APS Award, unless there are compelling reasons not to do so. That completes my submissions in relation to how the Bench should approach the matter.

PN389

If I could go to the contested matters and firstly the issue of SES coverage. We rely upon our submissions at paragraphs 42 to 48, and obviously we seek to have SES and executive professionals covered by the modern APS Award in the same limited way as they are in the 1998 award. We are talking about approximately two and a half thousand employees, and we acknowledge that SES employees earn above the high income threshold, and as a consequence of that the primary reason for us seeking SES to be covered by the modern award is to protect them from unfair dismissal, or to have them be - sorry, have the unfair protection in the Fair Work Act available to SES employees.

PN390

The Commonwealth say that there's no need for that in the award, that those employees have alternative protections against unfair dismissal, both under the Public Service Act and via the Public Service Commissioner, and by judicial review. There are two problems with the Commonwealth's view. First of all, the protection for unfair dismissal under their proposal is not independent protection, or it's not protection offered by an independent body. It's reliant upon one of the officers of the APS. Secondly, the protection they say is available under judicial review can be expensive and is not readily accessible to most employees. We say the SES employees should be able to access the Fair Work Commission unfair dismissal provisions because it provides ease of access and an independent assessment of each case. The - - -

PN391

DEPUTY PRESIDENT SMITH: Where do you put that under the modern award objective?

PN392

MR BENFELL: It's an interesting question, your Honour. It's obviously a protection outside of the award system that's provided, and we say that protection should be provided under the other part of the Act. If it's not provided for under the modern awards objective, we say it's provided for under the modern enterprise award objective. It's a pre-existing employment arrangement developed for the APS.

PN393

DEPUTY PRESIDENT SMITH: I see.

PN394

MR BENFELL: And so we say that not every matter has to be confined with the modern awards objective if it is compliant or furthers the modern enterprise award objective.

PN395

DEPUTY PRESIDENT SMITH: Thank you.

PN396

MR BENFELL: In relation to hours of work, as you know the Commonwealth are seeking to increase the ordinary hours of work per week from 36.75 to 38 hours. The Commonwealth says that most industry awards have 38 hours per week and so this should be the starting point. But the 36 and three-quarter hour week has been a condition of employment for almost a hundred years in the APS, at least from the determination of 1921, and we rely upon the evidence of Taylor in that regard. So we say that that should be the starting point, the current award. The Commonwealth provides no compelling reason to increase the ordinary hours.

PN397

The evidence of Ms Bull is that less than 1 per cent of APS employees currently work less than 38 hours under the terms of their enterprise agreement. This matter is a live issue. It's not an academic one. In the current round of bargaining in the APS the Commonwealth is seeking to increase the ordinary hours of work in the agreements, and we rely upon the evidence of Taylor in that regard. Granting an increase in the ordinary hours to 38 would not promote enterprise bargaining and would not promote or further the modern award objective. These matters have been dealt with through enterprise bargaining for a long time and that's what should continue.

PN398

The hours should be 36 and three-quarter hours because of the flexi employment arrangements in the APS. It is relevant and especially relevant to the BOOT test for enterprise bargaining. It is fair and it would be unfair to increase the ordinary hours without the employees having an opportunity to bargain over that matter. The Full Bench when dealing with similar applications in the modern industry award context tended to adopt the prevailing industry standard, and we set that out in our submission at paragraphs 57 to 59. Excuse me, I just need to locate a - I've lost a document. Sorry, I'll do without it.

PN399

The Commonwealth says that the awards we refer to in the modern industry award process, where less than 38 hours was awarded, those awards that have less than 38 hours are characterised by employees performing duties of an arduous nature or facing disabilities, or have peculiar disabilities associated with that industry. They cite the - at paragraph 7.16 of their response they refer to the fact that:

PN400

The awards which have less than 38 ordinary hours per week are awards where - that cover employees working in industries where there are unique operational and health and safety reasons that dictate an industry standard that reflects fewer ordinary hours per week than a majority of other industries and occupations.

PN401

And that:

PN402

Duties performed by employees covered by these awards such as the black coal mining, long distance haulage, marine towage and diving, are primarily manual labour based duties that necessarily involve work health and safety considerations and those considerations do not apply to the APS.

PN403

Well firstly, some of the duties of APS employees do involve similar work. But more importantly, their position is fundamentally flawed because if that was the case, if that was the basis on which the Full Bench decided that less than 38 hours was appropriate, then if you look at the Building and Construction Onsite Construction Award it has 38 hours. If you look at the Mining Industry Award it has 38 hours. If you look at the Electrical Contracting Industry Award it has 38 hours. So the Bench did not award the less than 38 hours on the basis of the sort of disabilities in the industry. They awarded those hours on the basis of pre-existing award provisions.

PN404

Finally in relation to the hours question, the evidence of Taylor at paragraph 25 shows that where enterprise agreements provide for less - sorry, provide for more than 36.75 hours those arrangements have been offset by additional paid leave over the Christmas period, and that's why in part we say that the question of hours should be the subject matter of enterprise bargaining so that employees have an opportunity to bargain for hours in addition to 36.75, rather than this Bench awarding 38 hours and removing the capacity of bargaining between 36.75 and 38 hours.

PN405

In relation to the spread of hours, the Commonwealth puts it to the Bench that the change they seek to the spread of hours is to accommodate employee choice and flexibility. It's a benevolent act on their behalf, to enhance employee choice rather than anything they would seek themselves, and that's at paragraph 7.13 of their supplementary submissions. They provide no evidence to support that assertion and in any event, even if that were true, enterprise agreements are the most appropriate way to make changes to the spread of hours so that the particular circumstances of each agency can be taken into consideration.

PN406

The motivation of the Commonwealth is not the key consideration. The effect of the change they propose is the key consideration. While we accept the evidence of Ms Bull in relation to the Commonwealth attempting to reach agreement with employees about their hours of work so that the employees have some flexibility, if there is no agreement, according to her evidence, then the standard hours are applied, and the standard hours are likely to be placed on the employer's consideration of what is necessary for the efficient operation of the agency, and not on the needs of each employee, at the end of the day.

PN407

The evidence of Ms Van Barneveld shows that there are important implications for employees with family responsibilities when changing the spread of hours, and employees with family responsibilities may be adversely affected by such changes. So we say that the Bench should not change the spread of hours from the current provisions. They are more properly dealt with in enterprise bargaining. The current spread of hours has been a feature of APS employment since 1921 and it would be unfair to increase the spread, given the impact of the changes on various groups of employees.

PN408

DEPUTY PRESIDENT SMITH: I'm sorry, did you say the spread has been there since 1921 as well?

PN409

MR BENFELL: Yes, the evidence of Taylor - - -

PN410

DEPUTY PRESIDENT SMITH: Yes.

PN411

MR BENFELL: - - - at 20. I beg your pardon, at 27 and 28, and it gradually morphed into the various awards that became the 1998 award, and the determination of 1921 is attached to his statement.

PN412

DEPUTY PRESIDENT SMITH: Yes. Thank you.

PN413

MR BENFELL: In relation to how the change in the spread of hours may affect overtime, at paragraph 66 of our outline we express the concern that the Commonwealth proposal may have adverse implications in relation to employees and their entitlement to paid overtime. At paragraph 7.6 of the Commonwealth's outline and response they say that our fears are incorrect and that the additional two hours of ordinary duty would not affect the overtime. The Commonwealth has clarified in paragraph 7.6 that:

PN414

An employee will be entitled to overtime under clause15.3(a)(ii) during the span of ordinary hours where the employee is directed to perform duty which is beyond the employee's ordinary hours of work on any day.

PN415

And they propose a change in their draft award to clarify that by changing the words "formally rostered" to "ordinarily required". That change has now been adopted by the CPSU in our exhibit A draft award at eight - sorry, at page 37, clause 15(a)(ii) and you'll see the words are highlighted. So we are now less concerned about that matter and we appreciate the Commonwealth endeavouring to fix that problem. In relation to district allowances and the associated removal expenses and travel allowances, the Commonwealth seeks to restrict the payment of removal expenses to where the employee moves to a remote locality in the interests of the APS or on promotion, which is a narrower set of circumstances than the current award provides.

PN416

They also seek to restrict the district allowance and fares to those compulsorily transferred to that locality. We oppose that change for the reasons set out in 71 to 85 of our submissions. The payment to the wider group of employees under the current 1998 award should be retained. It has been a feature of APS employment since 1935 - sorry, the removal expenses have been since 1935 and the district allowances and associated travel arrangements since 1902, and we rely upon the evidence of Taylor. It would be unfair to remove that entitlement for some employees and the Commonwealth has provided no compelling reasons for the removal of that entitlement.

PN417

There are approximately 9200 employees in the APS who receive locality allowances according to the APS remuneration report 2013, so we're not talking about a handful of employees. One of the major disadvantages of the Commonwealth proposal is that it will reduce the incentives for employees to move to remote localities and undermine the career based nature of the APS. The Commonwealth proposal would create two classes of employees suffering the same disabilities; those who were employed at the locality and those who are sent in the interests of the APS to the localities, and there's no rational reason for their claim.

PN418

If I can turn to superannuation. Superannuation is not a matter included in the 1998 APS Award because it was not needed. In 1998 when the award was made, permanent APS employees were in defined benefit funds and they were based in legislation, the Superannuation Act 1976 CSS and the Superannuation Act 1990 PSS. But in 2005 the world changed with the introduction of the PSS Accumulation Plan or PSSap, as it's sometimes called, and also the introduction of the Superannuation Guarantee Administration Act.

PN419

We say that the award should contain superannuation provisions in the same way as other industry awards contain superannuation provisions, even though the Superannuation Guarantee Administration Act applies to those other industry awards. We have tailored a proposed superannuation clause to suit the needs of the APS, and significantly we're seeking to have a contribution rate of 15.4 per cent made in to those employees who are members of the PSS accumulation plan. We set that out in clause 13 at page 33 and 34 of our draft award.

PN420

COMMISSIONER JOHNS: Mr Benfell, what work does this clause really have to do? I mean, if I look at say page 34 and the second dot point there dealing with PSSap, isn't that just really a statement of what the legal position is? I mean what work is it really performing in the award?

PN421

MR BENFELL: Are you referring to the second dot - the last dot point under B?

PN422

COMMISSIONER JOHNS: Well:

PN423

If the employee is in the PSSap Scheme - - -

PN424

MR BENFELL: Yes.

PN425

COMMISSIONER JOHNS:

PN426

- they can under superannuation legislation generally have the opportunity…

PN427

I mean it's just a statement of what their rights are. It's not actually giving them any right under this award to do anything. It's just a statement of their position, isn't it?

PN428

MR BENFELL: Yes, except the second part goes on to say that the rate should be 15.4 per cent.

PN429

COMMISSIONER JOHNS: But how can the award - - -

PN430

DEPUTY PRESIDENT SMITH: That's the objective, is it?

PN431

MR BENFELL: Yes.

PN432

DEPUTY PRESIDENT SMITH: To lock in 15.4?

PN433

MR BENFELL: Yes. Well, C is more important in a sense because - - -

PN434

COMMISSIONER JOHNS: But how can the award affect the trust deed?

PN435

MR BENFELL: The - - -

PN436

COMMISSIONER JOHNS: It's saying:

PN437

The employer is required to contribute to superannuation on behalf of the employee at the rate specified in the relevant trust deed associated with the Act.

PN438

MR BENFELL: Yes.

PN439

COMMISSIONER JOHNS: "This rate will be at least 15.4". So what if the trust deed changes? How do you reconcile the difference?

PN440

MR BENFELL: Well if the trust deed provides for an amount greater than 15.4 per cent then - - -

PN441

COMMISSIONER JOHNS: There's no conflict. I see.

PN442

MR BENFELL: - - - there's no conflict. If the trust deed provides less than, then we would say the award would provide the 15.4.

PN443

COMMISSIONER JOHNS: No, but it's saying "this rate", the rate in the trust deed, "will be at least 15.4 per cent". How can this award impose that on the trust deed?

PN444

MR BENFELL: Yes. Yes, now that you've raised that, Commissioner, I appreciate the wording is not ideal. The intent is to specify that the minimum will be 15.4 per cent. The real issue is though where the employees choose another fund, which is available to them.

PN445

COMMISSIONER JOHNS: Which is item C.

PN446

MR BENFELL: Yes. But the fundamental - I mean, as you know the Commonwealth is saying amongst other things that having these provisions in the award essentially has no effect because that's already provided for in legislation, and section 40 of the Fair Work Act essentially provides that there's no, as they put it, utility in the award having the terms sought by the CPSU. The problem we have is that at the moment it's correct that the legislation does provide for what we are seeking, apart from the 15.4 per cent, although that's in the trust deed. The superannuation legislation in the APS is subject to change over time and we want to ensure there's an award safety net to avoid adverse changes, and we note for example that in yesterday's mid year economic and financial - sorry,
MYEFO - - -

PN447

COMMISSIONER JOHNS: MYEFO?

PN448

MR BENFELL: Yes, included an announcement that from 1 July 2015 employees will now bear the administration costs of the PSSAp Scheme and that is the sort of change that we are trying to go against, where the government can change these - the legislation and other matters and leave the employees without an adequate safety net, especially those who decide to choose other funds apart from the PSSap Scheme. The other defined benefit schemes, as you know, have been closed to new members so new employees - all new APS employees, as I understand it, go into the PSSap Scheme and since 2006 have been able to choose other funds.

PN449

Now the 15.4 per cent may on the face of it appear to be rather generous but it is based on the current trust deed of the PSSap and it is also commonly in enterprise agreements, and we rely upon attachment of Van Barneveld's evidence which sets out the agency agreements which provide for the 15.4 per cent contribution rate. We also refer to the evidence of Taylor at table 1 of his evidence where the Commonwealth is trying to remove reference to the 15.4 per cent contribution rate during the current round of bargaining. So it's not an academic issue, it's a live issue, and we say that the Commission should provide a safety net in terms of the current provisions for the employees in relation to super.

PN450

COMMISSIONER JOHNS: In the Commonwealth's submissions in reply at paragraph 9.7 they say:

PN451

The Commonwealth is not liable to pay the superannuation guarantee charge.

PN452

MR BENFELL: Yes.

PN453

COMMISSIONER JOHNS: Do you accept that?

PN454

MR BENFELL: Yes.

PN455

COMMISSIONER JOHNS: Then what work does 13.2 have to do in your draft?

PN456

MR BENFELL: I understand that that's required to - the employees who may choose another fund - no, I must say it appears on the face of it to be inconsistent with (c) of 13.2.

PN457

COMMISSIONER JOHNS: Maybe you can reflect on that.

PN458

MR BENFELL: Maybe I can seek advice on that, and I must say superannuation is not my field of expertise, if I have a field of expertise. So if I could go to the definition of shift worker and the additional leave, at paragraph 10.7 in the applicant's submission in response it's suggested that the CPSU proposed clauses at 16.2 and 16.3 of our draft award would result in a double dipping in effect, where the employees would have both the NES additional week's leave and an additional half day paid leave for each Sunday rostered up to a maximum of five days per year. We do not intend for that to be the case. We simply seek to retain the arrangements in the 1998 award.

PN459

The current entitlement in the 1998 award is set out at clause 27.1.4 and it provides for an additional half day paid leave for each Sunday rostered up to five days per year or one week. In Mr Taylor's statement at paragraph 49, that has been the case since 1963 in the APS. We have reflected upon what the Commonwealth have said and have proposed an alternative provision set out at 16.2 and 16.3 of our draft. The essence of the proposal is that we are seeking to retain the provision that the employees work - are rostered on Sundays and that the definition of a shift worker is set out in schedule E of the Commonwealth's draft or the union's draft. In doing so we are seeking to retain the provision which reflects the employment arrangements in the APS and would be fair to retain and relevant.

PN460

In relation to crediting personal carers' leave, as you know the issue there is not the amount of leave to be provided but it's the amount - how the leave is credited. The Commonwealth suggests that it should be credited or accrued in accordance with the NES. We seek to retain the employment arrangement which has been developed for the APS since the 1920s and that's the evidence of Taylor at paragraphs 86 to 92. It is a - we say that it's fair and relevant to retain that provision. We have provided evidence from Ms Van Barneveld about the potential implications for employees with family responsibilities if that up front credit was not retained, and we note that the Black Coal Mining Industry Award 2010 has a similar provision, and we say that indicates that it's consistent with the modern award objective, and finally, the Commission[sic] has not provided any compelling reasons to remove this condition of employment.

PN461

In relation to maternity leave, we seek to supplement the NES by providing 12 weeks' paid maternity leave. The 12 weeks' paid maternity leave is currently provided by the 1973 legislation and the 1998 APS Award and in the enterprise agreements, and we refer to attachment 3 of Ms Van Barneveld's evidence, where it shows that generally in enterprise agreements the paid leave entitlement ranges from 14 to 18 weeks. The Commonwealth say that paid maternity leave is already provided for in legislation and that section 40 of the Fair Work Act would mean that any award provision would have no application.

PN462

But this is an important entitlement for APS employees, bearing in mind the evidence of Ms Van Barneveld that some 57 per cent of APS employees are women and a large proportion of them have family caring responsibilities. We note that the legislation providing for paid maternity leave was introduced in 1973 and the 1998 award also provided for paid maternity leave. So the Commonwealth's argument that it's already provided for in legislation does not fit well with those facts. Our concern if the paid maternity leave in the current award is not retained is that the legislative or the legislation providing for the paid leave may change.

PN463

In fact there's a debate at the moment as to how paid maternity leave should be provided to all employees in Australia. If the legislation did change or was repealed then section 40 of the Fair Work Act would have little or no application, and we say that the award provision is necessary to provide a safety net for enterprise bargaining on that issue. The second-last matter I want to address is the rate of pay for paid leave. We welcome the proposal by the Commonwealth to amend the draft award to define ordinary hourly rate and have that ordinary hourly rate paid for paid leave, and that is set out then on page 71 of our draft award at schedule E, definitions, where we have adopted the Commonwealth's words in yellow.

PN464

That is, the definition of ordinary hourly rate, and I apologise to the Commonwealth because I didn't mention this this morning - we had other things to talk about - but we seek to add shift penalty payments to the definition of ordinary hourly rate. So that employees who are shift workers and are paid penalties for those shifts, if they were to go on leave they would still be paid that shift allowance for their leave. We note though that the Commonwealth proposal in relation to annual leave only provides that the shift penalty payment should be paid while on annual leave, and that's set out at clause 16.7 on page 43.

PN465

We say that shift workers should not receive less pay when they are on paid personal leave, compassionate leave and other forms of leave than they would have received if they were not on leave, and we say that that's how the matter is dealt with currently. Finally, the agency-specific schedules. Not surprisingly the CPSU seeks to retain the agency-specific schedules to provide a fair and relevant safety net for specified groups of employees set out in the schedule. We have dramatically rationalised the schedule from the schedules in the 1998 award and are only seeking provisions that are still relevant and necessary to provide a safety net for the BOOT test for agreements.

PN466

The Commonwealth says that if provisions only apply to discrete parts of the enterprise then they should be in agreements not in the award. The APS is a very large enterprise with a wide range of duties and functions. To provide an adequate safety net it's necessary to provide specific safety net provisions for all groups of employees. We note that many provisions of the draft award proposed by the Commonwealth and ourselves do not apply to all employees. For example, the various licences - sorry, licence allowances in the allowances clause only apply to relatively small groups of employees.

PN467

Our primary concern in the deletion of these agency-specific schedules is that they currently provide a safety net for small groups of employees, for example those engaged in duty at sea ie. customs officers protecting our borders et cetera, and COMCAR drivers, which are two of the matters we seek to retain. We need these in the award to provide the safety net because if it was left to agreements, the tyranny of the majority applies. For example, the duty at sea provisions only apply to a part of the workforce in customs, which is the agreement that applies to those employees, and we have found in bargaining often that minorities' needs are overwhelmed by the interests of the majority who have no real interest in keeping the provisions for the minority.

PN468

Similarly with the COMCAR drivers, they are part of the overall finance agency - sorry, the Department of Finance Agreement and again their interests are swamped by the interests of others, and the Commission needs to protect those minorities and their conditions and provide a safety net so that the majority can't vote to have them removed in the enterprise agreement context. The provisions we seek reflect the employment arrangements developed for the APS. They are fair and relevant. If the Bench were of a mind to include the provisions we seek, or some of them, they could be integrated into the text of the award rather than form a schedule.

PN469

The Commonwealth made a submission yesterday that the schedules would simply add bulk and clutter up and be inappropriate as a schedule. We only put them in the schedule so that it was clear what we sought, and we would have no objection to drafting those provisions into the terms of the award proper rather than the schedules. Unless there are questions, that completes my submissions.

PN470

DEPUTY PRESIDENT SMITH: Mr Benfell I'm sorry to do this to you but if you look at the award, and you referred to some agency-specific matters.

PN471

MR BENFELL: Our draft award or the current award?

PN472

DEPUTY PRESIDENT SMITH: No, the current award.

PN473

MR BENFELL: Yes.

PN474

DEPUTY PRESIDENT SMITH: If you take the last one that you just referred to, the COMCAR, which is schedule D, there's a curious provision, D2.1.4. Once you get it, I'm interested in the scope of that provision and therefore the utility of having an appendix. It says:

PN475

The agency head and the employee may agree to any variation of this provision to meet the circumstances of the work in hand.

PN476

MR BENFELL: Sorry, your Honour, which part of the schedule?

PN477

DEPUTY PRESIDENT SMITH: D.

PN478

MR BENFELL: B?

PN479

DEPUTY PRESIDENT SMITH: D.

PN480

MR BENFELL: Yes.

PN481

DEPUTY PRESIDENT SMITH: It's the COMCAR, the last one you referred to.

PN482

MR BENFELL: COMCAR, yes. Yes.

PN483

DEPUTY PRESIDENT SMITH: Now you might like to take it on notice but D2.1.4, I wonder what the safety net is if the agency head and the driver can agree to anything. I may be reading it incorrectly.

PN484

MR BENFELL: Yes.

PN485

DEPUTY PRESIDENT SMITH: So I give you a chance to have a look at it.

PN486

MR BENFELL: Yes. Thank you, your Honour, I'll seek some advice on that.

PN487

DEPUTY PRESIDENT SMITH: There's one other question. Can you assist me with where the remote conditions are in the current '98 award?

PN488

MR BENFELL: In the current award?

PN489

DEPUTY PRESIDENT SMITH: Yes.

PN490

THE VICE PRESIDENT: Mr Benfell, what I might do is take a short adjournment and give you the opportunity to answer those questions. That's the only questions we have before we move on.

PN491

MR BENFELL: Thank you.

<SHORT ADJOURNMENT [11.20AM]
<RESUMED [11.44AM]

PN492

THE VICE PRESIDENT: Mr Benfell, at the conclusion of the case we would be grateful if you could put in, by way of a supplementary document, a document to show what the award would look like if you did incorporate the schedules into it.

PN493

MR BENFELL: Thank you, your Honour. I just wanted to address the issues that Deputy President Smith raised. In relation to where the district allowances and the like are in the current APS Award.

PN494

DEPUTY PRESIDENT SMITH: Yes?

PN495

MR BENFELL: It's a combination of clause 22.4 which sets out the district allowance and 22.8 which sets out removal expenses, and 22.12 which sets out remote localities leave fare reimbursement.

PN496

DEPUTY PRESIDENT SMITH: I see.

PN497

MR BENFELL: And 27.12 which provides for additional annual leave for those in remote localities and it refers to a table 27A which is found at - well, there are no page numbers unfortunately. It's found just after 27.9 and it sets out the additional weeks per locality. So it's a combination - - -

PN498

DEPUTY PRESIDENT SMITH: So when was the last time, do you know, that those localities for district allowance purposes were reviewed?

PN499

MR BENFELL: Are you referring to the 22.4?

PN500

DEPUTY PRESIDENT SMITH: Point four.

PN501

MR BENFELL: Yes.

PN502

DEPUTY PRESIDENT SMITH: You may recall we had some difficulty about district allowances in the main award modernisation case?

PN503

MR BENFELL: Yes.

PN504

DEPUTY PRESIDENT SMITH: I think you suffered through that as I did.

PN505

MR BENFELL: Yes, it was - - -

PN506

DEPUTY PRESIDENT SMITH: I mean participated.

PN507

MR BENFELL: - - - (indistinct). Well, according to this document they were varied in 2008, that is table 22D.

PN508

DEPUTY PRESIDENT SMITH: Yes.

PN509

MR BENFELL: The rates of district allowance and the table 22C, the localities for district allowance purposes, was varied in 2001. But I must say, your Honour, ass you would appreciate the district allowance provisions have been completely redrafted by the parties in the interposed award.

PN510

DEPUTY PRESIDENT SMITH: Yes.

PN511

MR BENFELL: To avoid the issue of interstate differentials.

PN512

DEPUTY PRESIDENT SMITH: Yes.

PN513

MR BENFELL: So we're confident that that avoids that problem that was addressed in the industry award-making process.

PN514

DEPUTY PRESIDENT SMITH: Thank you.

PN515

MR BENFELL: If I could also take you to the issue you addressed in relation to COMCAR.

PN516

DEPUTY PRESIDENT SMITH: Yes.

PN517

MR BENFELL: That is that unfortunate little provision that allows at D2.1.4, allows for agreements. We say that that does undermine the safety net and we do not intend to include it in the proposed APS Award, and if you go to page 74 of our proposed schedule you will see that that does not - it's under section F2, "Employment conditions specific to employees of COMCAR" starting at page 73. We do not intend to have that provision in the current award, which undermines that part of the safety net. While I'm on that page, your Honour, I should advise the Bench that the text in highlighted yellow on page 74, that is F.2.5B and C, they are not a proposal of the Commonwealth.

PN518

I had earlier said that highlighted in yellow text was text we adopted from the Commonwealth. That's correct except for this one. Unfortunately I didn't mean to mislead the Bench, but we are seeking to add these two subparagraphs to that clause and the Commonwealth hasn't had a chance to look at that. But I thought I should mention that for the sake of completeness. Finally, if I can seek the indulgence of the Bench, I have got a brief submission in relation to the paid training leave for dispute resolution, if I could? I forgot to do that, and I won't take the Commission's time.

PN519

As you know, the CPSU seeks to retain the paid dispute settlement training leave provisions of the 1998 APS Award. The Commonwealth objects to it and, amongst other things, says that it is not an APS industry standard. We say of course it is because it's in the 1998 APS Award and it applies to all of the APS. They also say that if we were to succeed in persuading the Bench to retain the paid training leave provisions we should also retain the complete requirements of the current award, which they set out in paragraph 11.9 of their supplementary submissions. We say that if the Bench were to award the paid training leave then we would do as the Commonwealth seeks and add those other provisions.

PN520

The dispute resolution paid training leave provisions are an important part of ensuring that the dispute resolution processes under the award are dealt with professionally and efficiently, and we note that the modern industry awards contain dispute resolution training leave where there is a prevailing industry standard, and we refer to decisions of the Full Bench of the AIRC in relation to that in our written submissions. So we say that the paid dispute resolution training leave should be retained because it reflects employment conditions in the APS, it is relevant, and it is an important and fair part of the safety net. Just in relation to - if I can finish - the new draft of the award you sought, is Friday of this week too late for the Bench, or?

PN521

THE VICE PRESIDENT: No, that would be fantastic.

PN522

MR BENFELL: Thank you.

PN523

THE VICE PRESIDENT: Mr Nicolaides?

PN524

MR M. NICOLAIDES: Thanks, your Honour. The AMWU addresses its coverage relevant to these proceedings at paragraphs 1 to 4 inclusive of its outline of submissions. In broad paraphrase that coverage is of technical and trade employees. These employees work in a range of agencies including the Department of Defence, the Australian Antarctic Division, the Department of Foreign Affairs and Trade, the Royal Australian Mint, Geoscience Australia and the Australian Radiation Protection and Nuclear Safety Agency. The AMWU would categorise the items in contention between the parties within two groups.

PN525

Firstly those general to the making of the proposed award and, secondly, those particular to individual terms or conditions. The first of these categories is addressed at paragraphs 21 to 33 inclusive of the AMWU's outline. Additionally the union adopts the arguments of the CPSU as presented at paragraphs 11 to 41 inclusive of its outline and elaborated today. In its response to the unions' various written submissions the Commonwealth took issue with paragraph 30 of the AMWU's outline. Specifically it wrote:

PN526

The AMWU states that the Commonwealth cites enterprise bargaining outcomes to justify a change in the entitlement that it seeks. This is not a proper characterisation of the Commonwealth's submissions. The Commonwealth cites those entitlements contained in enterprise agreements as being demonstrative of the terms and conditions that currently apply within the Commonwealth industry and therefore must be taken into account by the Commission under section 45D of schedule 6 to the Transitional Act.

PN527

And that's where the quote ends. With respect, the AMWU does not believe that it mischaracterised the Commonwealth position, which goes beyond citing matters to be taken into account to using those matters to advocate for change. For example at paragraph 15.4 of the Commonwealth's original outline it said:

PN528

The applicant submits that a large number of enterprise agreements covering APS employees provide for the cashing out of annual leave and accordingly it is appropriate to include a cashing out provision in a modern APS Award.

PN529

Paragraph 7.19 of the Commonwealth's outline in response is also pertinent. It read in part:

PN530

A clear majority of APS employees work at least 37 and a half ordinary hours per week. Accordingly the inclusion of a 36 and three-quarter ordinary hour working week would not be reflective of current industry or enterprise practice.

PN531

And then we know the Commonwealth's position is that ordinary hours should increase to 38 per week. A modern award should, in the AMWU's strong submission, provide a safety net for enterprise bargaining and could where appropriate reflect aspects of past enterprise bargaining, taking into account the terms and conditions or, perhaps having regard to Mr O'Grady's submissions of yesterday, the working arrangements applying in the industry. In the AMWU's submission modern awards are not intended to lead enterprise bargaining, which it suspects is motivating aspects of the Commonwealth's submission particularly in relation to hours of work, which I'll come back to a little bit later.

PN532

As to particular terms and conditions, the AMWU states its support for the positions of the CPSU in these proceedings, that union being the dominant union in the Australian Public Service and having shouldered the bulk of the argument on the proposed award. I do acknowledge however that there are some differences in emphases between the two unions, given the natures of their respective coverages, for example the AMWU has no membership within the SES. In its outline of submissions the AMWU addressed hours of work particularly as they affect technical and trade employees, the period over which ordinary hours of work should be averaged, the cashing out of annual leave and the agency-specific provisions.

PN533

The Commonwealth has since made a concession in relation to the averaging of hours such that that matter is no longer in contention. So this leaves three matters to be addressed, and I should say that the AMWU will also say something at the end of this submission about the revised arrangement for apprentices which have been included in the draft of the proposed award which was sent to the Bench on Friday. I'm now going to ordinary hours of work. At paragraphs 34 to 42 inclusive of its outline of submissions the AMWU addresses the ordinary hours of technical employees versus those of trade employees, and those ordinary hours are different.

PN534

The Commonwealth has now challenged the technical - has not challenged that technical employees generally work the same hours as administrative employees within the service. At paragraphs 43 to 45 inclusive of its outline, read in conjunction with paragraph 31 and attachment 1, the AMWU addresses the Commonwealth's preferred outcome on ordinary hours of work; it accepts that its position depends on the success of the arguments of the majority union in these proceedings, being the CPSU.

PN535

I did mention attachment A to the AMWU's outline of submissions and I would like to turn to that briefly, and I think it might be relevant to an exchange between Commissioner Johns and Mr O'Grady yesterday. That attachment records an enterprise bargaining deal negotiated between the Department of Defence and the unions, the unions collectively, in late 2001. Through that deal, ordinary working hours were standardised for all of the department's civilian employees at 37.5 per week. So at the start of those negotiations the department's position was that hours should increase by 45 minutes a week for which the department would pay more than it otherwise would.

PN536

The response of the unions collectively was, "Not interested in additional money for trading off leisure time". That if there was to be - if Defence's proposition of an extra 45 minutes was to be countenanced it would be on the basis of offsetting leisure time, and the letter at attachment A records the outcome of the subsequent discussions. So if you could go to the second page of that attachment. Sorry, I should say the letter is over the head of - over the signature of a man at the time who was deputy head of Defence personnel executive, and I understand he's now a deputy secretary of - - -

PN537

COMMISSIONER JOHNS: This is attachment B, isn't it?

PN538

MR NICOLAIDES: It's the second page of attachment, A, your Honour.

PN539

MR……….: It's B.

PN540

THE VICE PRESIDENT: It's B. It's attachment B in the documents I've got in front of us.

PN541

MR NICOLAIDES: You might have the original.

PN542

THE VICE PRESIDENT: We've got a different version. It's the same document but in one folder it's attachment B, that I've got.

PN543

MR NICOLAIDES: There was an amended submission put in, your Honour. So the person that signed the letter is now, I believe, a deputy secretary of the department so on the second page of the letter it says:

PN544

Movement to a common working hour of 37.5 hours throughout Defence requires a majority of employees to work an additional 45 minutes per week or approximately 4.9 days a year. The unions party to the DECA -

PN545

Which is the acronym for the Defence agreement:

PN546

- have accepted this increase having regard to the following improvements in leave and leisure time arrangements also provided by the agreement.

PN547

And then there's a series of dot points which list what those additional benefits were. One of those, at the second dot point, is:

PN548

One day's leave per year for unspecified purposes.

PN549

And then in the next paragraph:

PN550

It is also acknowledged that arising directly from the negotiation of this DECA with its nominal life of two years there will be three two-day stand downs over the Christmas, New Year periods from 2001 to 2003 inclusive. The adequacy of these arrangements will be reviewed in the negotiations of the next DECA.

PN551

And in fact that next set of negotiations gave rise to another day which is called the specified leave day, which continues and appears currently at item 4 of annexe C of the current Defence agreement. So just to summarise, the increase in hours was calculated to be worth about 4.9 days a year, where four days clearly identifiable as being an offset and another series of benefits that the unions calculated as being acceptable for the additional point 9. The point is that it is less than frank of the Commonwealth to cite increases in working hours that have arisen from bargaining and seek to have those hours, or in this case more than those hours, written into the award without acknowledgement of the compensating benefits that were negotiated.

PN552

At paragraph 7.16 of its outline in response, the Commonwealth addresses those awards which specify weekly ordinary hours of fewer than 38 per week. Amongst other things the Commonwealth says that the duties performed by the employees covered by these awards are primarily manual and not comparable to those performed by APS employees. One of the awards concerned is the Oil Refining and Manufacturing Award, one of which I had some - at least with the industry - had some past familiarity. That award prescribes ordinary weekly hours of 35 per week.

PN553

Its classification coverage extends to include amongst others laboratory technicians and clerks, whose duties would not be described as primarily manual, and it also includes maintenance trades people. Save for one point that I'll come to shortly, the Commonwealth does not seek to explain why the award for laboratory employees of the oil industry specifies fewer hours than does the award for laboratory employees in private industry generally - being in shorthand the modern Manufacturing Award - when the work of the sets of employees is comparable. Nor does it seek to do so for clerks or for the maintenance employees. The one point that the Commonwealth does raise concerns operational health and safety reasons unique to the industries concerned.

PN554

For its part the AMWU does not accept, does not accept, that an employee working in a laboratory in the oil industry is subject to operational health and safety concerns greater than those of an employee working in a laboratory elsewhere, say with nuclear materials, such as those with which an employee in ARPANSA may work, or biological samples in an analytical laboratory, similarly with the clerks. For example the typical duties of a level 1 clerk under the Oil Award include reception and switchboard, maintenance of basic records and filing, collating, photocopying et cetera, and it's hard to see why performing those duties in the oil industry should constitute a greater threat to health and safety than performing them in, say, a security firm or some other company.

PN555

There must have been reasons beyond those advanced by the Commonwealth for the Commission to have distinguished the ordinary hours specified by certain awards, and in that regard the CPSU has cited relevant Full Bench decisions at paragraphs 56 to 58 inclusive, and attachment 1 of its outline of submissions. In summary, the AMWU urges the Bench to retain the current award's specification on the number of ordinary hours of work each week. Coming to the cashing out of annual leave, the parties have been discussing the terms of the proposed award for well over a year. The facility to cash out annual leave has been in contention for much of that time.

PN556

Subclause 16.6 of the award as proposed by the Commonwealth would apply generally. That has been the Commonwealth's position on the drafting of the provision throughout the discussions of the parties. The Commonwealth addressed its proposed cashing out facility at paragraphs 15.1 to 15.4 inclusive of its original outline of submissions. Ms Bull addressed it at paragraph 34 of her witness statement. That original submission and the accompanying witness statement were consistent with an intention to have the facility apply generally. They emphasised that such facility had been included in a majority of APS enterprise agreements, and this is consistent with Mr O'Grady's argument about regard being paid to working arrangements within the enterprise.

PN557

Nothing was put to the Bench before yesterday concerning - and here I hope I captured Mr O'Grady's words correctly - "the narrow group of employees potentially affected by the machinery of government changes", nor were statistics given yesterday or in Ms Bull's two witness statements about the scale of that problem. During the discussions of the parties the Commonwealth did not seek to explore with the unions possible alternative formulations of its subclause 16.6. In effect it put an all or nothing approach. The AMWU encourages the Bench to adopt the second of those two alternatives. That is, nothing. It does so for the reasons set out at paragraphs 52 to 60 of its outline of submissions, and it is mindful of the observation of the 2008 Full Bench as cited at paragraph 52 of its outline that:

PN558

Should cashing out of annual leave become widespread it would undermine the purpose of annual leave.

PN559

Coming to the agency-specific provisions these are addressed at paragraphs 61 to 72 inclusive of the AMWU's outline. The union notes in passing that the Commonwealth has left unchallenged paragraphs 65 to 67 inclusive of that outline. At paragraphs 15.3 and 15.6 of its outline in response the Commonwealth submits that:

PN560

Where a specific entitlement or term applies only to a discrete part of the enterprise it is more appropriate for that term or entitlement to be dealt with through enterprise bargaining.

PN561

And:

PN562

A modern APS Award will apply to the entire APS as an enterprise and will act as a fair and relevant minimum safety net with respect to the enterprise as a whole. In that context the Commonwealth submits that it is unnecessary to include in the modern APS Award additional provisions that apply only to certain parts of the enterprise.

PN563

And that's where the quotes end. Such submissions, as Mr Benfell pointed out earlier, gloss over the nature of the APS as an enterprise, one of over 160,000 employees of diverse occupations. Taken to their extreme the Commonwealth submissions would call into question its, that is the Commonwealth's, inclusion of subclauses 10.4, agency-specific classifications, and for example 11.10, camping allowance, within the award that the Commonwealth proposes. Now to its credit the Commonwealth puts a more realistic approach or countenances a more realistic approach at paragraph 15.4 of its outline in response.

PN564

Under that approach its subclauses 10.4 and 11.10 are appropriate inclusions in the award, as should be certain but not all provisions from schedule A of the current APS Award. Of the seven provisions from that schedule's appendix A, which deals with the Department of Defence which the AMWU seeks to have retained, four would be categorised as disability allowances, two as a mixture of payment for skill and disability, and one as an allowance for accepting additional responsibilities. All seven of those provisions are wage-related. As adverted to in paragraph 71 of its outline of submissions the AMWU cannot differentiate between the character of these provisions and others that the Commonwealth has agreed to retain.

PN565

These latter provisions are conveniently listed at item B1 of schedule B of the Commonwealth's proposed award. It appears to the AMWU that the Commonwealth has differentiated between the provisions merely on their location within the current award. Those that it proposes be retained appear in the body of that award and those that it proposes be abandoned appear in its schedule A. The Commonwealth does not appear to have analysed the provisions in the schedule against the considerations it set itself at paragraph 15.4 of its outline in reply. Duty at sea provisions provide a useful example going to the maintenance, we say, of the fair and relevant minimum safety net.

PN566

Mr Benfell drew attention to the customs provision. I would draw attention to that provision in the appendix A of schedule A, which is again relevant to the Department of Defence. In the AMWU's submission the duty at sea condition is tailored to reflect employment arrangements that have been developed in relation to the APS enterprise. It is a tailored provision. I hesitate to do this because there might be some differing in the numbering, your Honour, but at attachment C of its amended submission the AMWU attached a copy of an email it sent to the Commonwealth in November 2013.

PN567

THE VICE PRESIDENT: Yes, I have that.

PN568

MR NICOLAIDES: In its effect that email advised that the AMWU, similar to the CPSU, was open to the provisions from the current award schedule A either being retained in the schedule or being written into the body of the award, and the AMWU will undertake to liaise with the CPSU about the appropriate formulation of the provisions it seeks to retain within the body of the award. Just for completeness I should say that the email addressed the relationship between provision A9 from the current award and paragraph 36 of the current Defence Enterprise Agreement. That reference was made on the advice of the Department of Defence.

PN569

The AMWU believes that there's also a relationship between provision A9 and paragraphs 41 to 43 inclusive of the current Defence Agreement, which is I think called a climatic disability allowance. So similar to the CPSU, we seek to have retained within the proposed new awards those provisions from the current award schedule A that remain relevant to the maintenance of a fair safety net, and this would constitute only a small minority of the current schedule's contents.

PN570

Now the last thing I want to address are the arrangements for apprenticeships, and this is done in the light of the Full Bench decision of 22 August 2013, the reference for which is (2013) FWCFB 5411. The AMWU wrote to the Commonwealth on this matter on 28 November. The Commonwealth replied on 11 December and the AMWU acknowledges that that response was both relatively speedy and generally positive and, for convenience, I might hand up a copy of the exchange of correspondence. So the AMWU's letter and the Commonwealth's response are stapled together.

PN571

The Commonwealth has provided a revised draft of its proposed award. So it did that on Friday, with the new arrangements for apprentices appearing in subclause 10.6. With one exception, the AMWU is comfortable with the revisions. The one exception concerns the rates in the tables at paragraph 10.6(b); the tables at paragraphs 10.6(b), (f) and (g). If I could just take you to the last page of what I've just handed up. So on the first page the Commonwealth addresses what it's prepared to include in the award and in the first paragraph on its second page it says it has:

PN572

…not included in the draft modern APS Award the proportion of the APS level 2 rate to be paid to apprentices other than those who commence their apprenticeship prior to the 1st of January 2014. The Commonwealth's view is that it is appropriate for the Commission to determine the applicable relativities to be included in the modern APS Award.

PN573

So given those circumstances, the AMWU might take the opportunity to explain how it arrived at the percentages it suggested for the relevant three tables, and I should say I use the word "suggested" here with some deliberation because I acknowledge that there are some judgments to be made and the judgments we make might be those different from those that the Commonwealth would otherwise have made, or indeed that the Bench might make. So the union took as its starting point paragraph 505 of the Full Bench decision whereby the maximum increase in rates during 2014 could be no more than 5 per cent, and it looked at the relevant percentages specified in the modern Manufacturing Award.

PN574

I should say there are a number of awards that reflect the outcomes of the Full Bench decision but they differ in - marginally, but they're expressed differently. So we chose the modern Manufacturing Award, being the award that we're most familiar with. There's one complication; there's always a complication. Some rates in the modern Manufacturing Award as now amended are expressed as the dollar rates applying to particular classification levels rather than as percentage relativities to the C10 or base trade rate.

PN575

So for example it's said that the table in the modern Manufacturing Award will say for certain levels you should apply the rate of the C12 or the C14, and in other places it will say the percentage relativity, that the figure should be 80 per cent. What the AMWU did was to convert those current dollar rates to percentage relativities to the C10 rate and we explain this at the last arrow point on page 1 of the AMWU's letter to the Commonwealth. If the relativity specified in the Manufacturing Award as now amended, which are expressed as percentages rather than dollar amounts, are accepted as appropriate then only certain of the rates proposed for the relevant tables by the AMWU require explanation. So if I could take you to the bottom table on page 3 of the attachment that I've - of the exhibit that I've given you.

PN576

I'll only take you to those percentages that we suggested, that are different from those specified in the modern Manufacturing Award. So in that bottom table in what will be 10.6C the rate specified or suggested by the AMWU for the first year of service says 50 per cent there. In the modern Manufacturing Award it's 50 per cent if the employee has completed - sorry, I should say that immediately above those columns the yes and no are actually in the wrong positions. I apologise for that. They got transposed and we didn't pick it up in proofing. So in the modern Manufacturing Award an apprentice who has not completed Year 12 gets 50 per cent if they have completed Year 11, or 47 per cent if they completed Year 10.

PN577

We took 50 per cent on the basis that the current APS rate is 48 per cent. In the next column, which is for those who have completed Year 12, at the first year the modern Manufacturing Award specifies 55 per cent. We've said 53 per cent on the basis that we can't get more than 5 per cent increase in 2014. So it's actually less than the Manufacturing Award. In the second year the modern Manufacturing Award says 63.9 per cent. We've said 60 on the same basis. 75 is exactly the same as in the modern Manufacturing Award and for the apprentice in the first column, and for the fourth year of service for someone who has completed Year 12 the modern Manufacturing Award says it should be the C12 rate, which currently works out at 91.8 per cent of the C10 rate.

PN578

So we've taken 92 per cent. We've suggested that. If I'm not making myself clear you'll ask me questions. Over the page it becomes a lot easier. The table at the top there, there's only one rate in contention and that is the fourth year rate for a person who has completed Year 12. Again the modern Manufacturing Award says it should be the C12 rate, currently at 98.1 per cent of the C10 rate, so we've chosen 92.f

PN579

COMMISSIONER JOHNS: Sorry, Mr Nicolaides, should the yes and no be again - - -

PN580

MR NICOLAIDES: Yes, in each of these tables.

PN581

COMMISSIONER JOHNS: Yes, okay. Thank you.

PN582

MR NICOLAIDES: Sorry, Commissioner. In what is F, on the table in F on this sheet, the bottom three rates are in contention. The modern Manufacturing Award says for the second year of service it should be the C14 rate, for the third year of service the C13 rate and for the fourth year of service the C12 rate. We have suggested the rates that they convert - that those rates convert to against the C10 rate in the modern Manufacturing Award.

PN583

I should say that if we had done it differently, if for example we had looked at the percentage relativities that are specified in schedule B to the modern Manufacturing Award, that specified percentage for a C14 is 78 per cent, so you'd get the anomaly of a first year person getting more than a second year person, which is why we very quickly abandoned that approach, and the system got complicated by the flat dollar increases that had been given through various safety net adjustments over the years. I hope that sheds some light. So other than what I've put in these verbal submissions, the AMWU relies on its written outline.

PN584

THE VICE PRESIDENT: What I'll do for completeness is I'll make your submissions plus this extra document recorded as exhibit B[sic].

EXHIBIT #C AMWU WRITTEN SUBMISSIONS TOGETHER WITH LETTER TO THE COMMONWEALTH DATED 28 NOVEMBER AND REPLY FROM THE COMMONWEALTH DATED 11 DECEMBER

PN585

THE VICE PRESIDENT: And the ANMF submissions will be exhibit C - and exhibit D will be the ANMF submissions, who are not going to appear to address them but we want them on the file noted.

EXHIBIT #D WRITTEN SUBMISSIONS OF THE ANMF

PN586

THE VICE PRESIDENT: Mr O'Grady?

PN587

MR O'GRADY: It may assist the Commission if you're comfortable with this if you are prepared to take an earlier lunch break. There are a number of matters that have been raised which I think I really need to take on board and get instructions from the Commonwealth about. Rather than do that, come back, then go to lunch, if you're comfortable with taking an early lunch then that will also put me in a position where I think I can deal with the submissions in reply - - -

PN588

THE VICE PRESIDENT: Yes, we'll do that. How long - - -

PN589

MR O'GRADY: - - - then - - -

PN590

THE VICE PRESIDENT: - - - do you want for that?

PN591

MR O'GRADY: If we could resume at 1.30 that would be fine.

PN592

THE VICE PRESIDENT: All right. The Commission's - sorry?

PN593

DEPUTY PRESIDENT SMITH: Can I just ask you to look at one thing for me, Mr O'Grady?

PN594

MR O'GRADY: I'm sorry, your Honour?

PN595

DEPUTY PRESIDENT SMITH: Could you look over the lunch break - - -

PN596

MR O'GRADY: I'm sorry.
DEPUTY PRESIDENT SMITH: Not now. In relation to the submission about the SES employees.

PN597

MR O'GRADY: Yes.

PN598

DEPUTY PRESIDENT SMITH: It was clear during the award modernisation process that the Commission shouldn't try and cover people that weren't ordinarily covered, and if I remember correctly one of the areas that this arose was in the legal area where we had a group of employees that were covered a long way up.

PN599

MR O'GRADY: Up to a certain year level I think it was.

PN600

DEPUTY PRESIDENT SMITH: Up to a certain year level.

PN601

MR O'GRADY: Yes.

PN602

DEPUTY PRESIDENT SMITH: And I think in the end the Full Bench made a decision to cut it off at a particular level below that.

PN603

MR O'GRADY: Yes.

PN604

DEPUTY PRESIDENT SMITH: I just want to be content that there is no concern about removal of coverage. Removal of coverage is made clear when you vary a modern award and section 163 says the:

PN605

FWC must not make a determination varying a modern award so that certain employers or employees stop being covered by the award.

PN606

And it goes on to say "unless", but I was just trying to make sure in my own mind that the same injunction wasn't there in making a modern award.

PN607

MR O'GRADY: Yes, I see. We'll take that point on board.

PN608

DEPUTY PRESIDENT SMITH: Thank you very much.

PN609

MR O'GRADY: Can I just mention one thing while it occurs to me. In terms of the marking of the material, I think your Honour Vice-President Catanzariti marked our folder of material. What was not included in the folder of material were the two statements of Ms Bull. So for the sake of completeness perhaps we should mark those - - -

PN610

THE VICE PRESIDENT: They will be included in that.

PN611

MR O'GRADY: Yes.

EXHIBIT #B (ADDENDUM) TWO STATEMENTS OF MS HELEN BULL

PN612

MR O'GRADY: Thank you.

PN613

THE VICE PRESIDENT: The Commission is adjourned.

<LUNCHEON ADJOURNMENT [12.32PM]
<RESUMED [1.32PM]

PN614

THE VICE PRESIDENT: Mr O'Grady.

PN615

MR O'GRADY: Thank you, your Honour. If I could start with a couple of points in relation to matters of general principle. Mr Benfell made a submission which was based on the passage which we cited from the Yum! Restaurants Full Court decision and its reference to there being a different safety net, if you like, in relation to modern enterprise awards. It's submitted that that does not mean that you start with the 1998 award. You start with the words of item 6 and you finish with the words of item 6 because that's what governs the job that you have at hand.

PN616

That proposition sits entirely comfortably with paragraph 70 of Coleambally and is reflective of the exchange between myself and Deputy President Smith yesterday. And when one goes to the words of item 6 it immediately becomes apparent that any suggestion of the general giving way to the specific is not relevant, because the words of item 6 explain what the Parliament intends. You are applying the modern awards objective and the minimum wages objective. That is your job, and the opening words of sub-item (2):

PN617

In applying the modern awards objective and the minimum wages objective…

PN618

So it's not a case of there being a contest between a specific and a general provision. What you have is a specific statutory injunction to apply the modern awards objective and the minimum wages objective, and in this case in a particular way by recognising that modern enterprise awards may provide terms and conditions tailored. Also I think in support of the proposition that was being urged upon you to start with the 1998 award, Mr Benfell drew on the decision in relation to the Victorian teachers' case. It's submitted that the use of the phrase retention of a particular clause was not of itself reflective of a philosophical approach that the existing award was the starting point, but rather was a shorthand way of saying that that is the clause that will be inserted into the modern enterprise award.

PN619

Can I turn then to the issue of the SES employees. There were a couple of points made in relation to that. One was the advantage of unfair dismissal provisions over the statutory avenues that are available for SES employees being that there was an independent body available. It's submitted that those who are part of the statutory scheme have a statutory duty to discharge and they will discharge that statutory duty. The other point that was made about that was the question of accessibility of judicial review from a financial perspective. It's submitted that those employees at the SES level of course would have the financial wherewithal to engage in the process.

PN620

Just while I'm dealing with those employees, this gives rise to the question that your Honour Deputy President Smith raised with me before lunch, which was the section 163 point. Section 163, as your Honour rightly noted, deals with the issue about the Commission considering varying a modern award and that it must not vary a modern award in a way which stops certain employees being covered by the award, unless of course they'll be covered by another award. The situation that you are in is that you are not varying a modern award you are making a modern award.

PN621

Relevantly section 143 provides that when making a modern award there is of course to be a coverage term setting out the employers, employees, et cetera who are to be covered, and that's identified in subsections (1) and (2). There is an equivalent provision in schedule 6 to the TPCA Act where, as you are, the Commission is called upon to consider a modern enterprise award, and that is item 8 in schedule 6, and it mirrors essentially section 143. So this is not a situation where you're being called upon to vary any award. You are being called upon to make an award and it's for you to determine the issue of coverage.

PN622

DEPUTY PRESIDENT SMITH: That's as I understood it.

PN623

MR O'GRADY: And in essence that's where the Parliament sees the unfair dismissal jurisdiction lie because the unfair dismissal jurisdiction is governed by the issue of award coverage.

PN624

COMMISSIONER JOHNS: Sorry, Mr O'Grady, just before you move on from that.

PN625

MR O'GRADY: Certainly. Sorry, Commissioner.

PN626

COMMISSIONER JOHNS: We currently have a Public Service Award and we are to make a new one, a modern Public Service Award, and the Commonwealth, the Minister would urge us to make it in the terms behind tab 3 in the folder. Isn't the practical effect though that it is an amendment? You're just taking the old award and making it into something different.

PN627

MR O'GRADY: Well, no, it's something different. It's a specific creature under the current statutory regime.

PN628

COMMISSIONER JOHNS: Yes, I understand that but when you sort of look behind all of that it's just an amendment isn't it really?

PN629

MR O'GRADY: Well, no, it's not because you are to make an instrument that complies with all of the statutory obligations of the Fair Work Act and in particular Part 2-3. The 1998 award is one that was made under a different statutory regime, and so it's a different creature and, yes, by sub-item (2) of item 6 of the TPC - sorry, the schedule 6 to the TPCA Act you're to pay regard to terms and conditions. But it's submitted that it is a wrong approach to start from the perspective that you are varying an existing award because that's not the statutory duty that is imposed upon you by the TPCA Act and by Part 2-3 of the Fair Work Act.

PN630

In relation to span of hours it's apparent from the submissions of Mr Benfell that the loss of overtime is no longer an issue. That leaves the issue of flexibility and we've made submissions in relation to that. On the issues of superannuation and maternity leave it's submitted that it's not the role of a modern award to lock things in contrary to the wishes of the Parliament. Section 40 of the Act gives priority to the legislative entitlement. I need also to say something about the shift worker provision. Perhaps the - if you have available Mr Benfell's exhibit A from this morning, which is the latest addition of the CPSU proposal, and the relevant clause is clause 16.2 and 16.3.

PN631

Also can I invite you to have open section 87 of the Fair Work Act because there is a technical issue with the way this clause is said to operate. Subsection (1) of section 87 provides for the additional entitlement. It provides - sorry, it provides for the entitlement to annual leave. It's generally four weeks of annual leave but in subparagraph (b) it is five weeks of annual leave if one or other of the criteria in subparagraphs (i) or (ii) or (iii) is satisfied. Now clause 16.2 purports to be a provision that provides that link. So that for the purposes of the NES you get five weeks if you're a shift worker who is regularly rostered to perform ordinary hours of work on Sundays.

PN632

Of itself that would satisfy the statutory criteria, but of course the Minister's position is that it ought be done on a 24/7 shift. So the Minister maintains his position that it's work outside of the span of hours on Monday to Friday and Saturday and Sunday work as per the Minister's draft. What you then have is clause 16.3 which then seeks to circumscribe the way in which 16.2 operates, and it does so in a way which is inconsistent with section 87(1), because section 87(1) confers an entitlement to five weeks' leave, and what 16.3 does is it seeks to set up a way in which you might get to the five weeks.

PN633

So the Minister's submission is that it must be one or the other, and if you go with 16.2 the Minister would urge upon you his position in terms of the rostering of 24 hours, seven days for the purposes of 87(1)(b). The alternative is to put a line through 16.2 and just have an additional half day for each Sunday worked up to a maximum of five days and not carry the link via section 87. So it's one or the other. The other issue that arises from that of course is that where there is an award provision of this nature, by section 160 - sorry, 196 of the Act any enterprise agreement must essentially carry the same provision.

PN634

DEPUTY PRESIDENT SMITH: Now there are a number of variations in the modern awards to how the extra week is accrued. It varies from a minimum number of Saturdays and Sundays.

PN635

MR O'GRADY: Yes.

PN636

DEPUTY PRESIDENT SMITH: To rotating shifts over five days. There has been some departure since the 1947 case. I don't think much has been argued but there has been some departures from it.

PN637

MR O'GRADY: Yes. Yes.

PN638

DEPUTY PRESIDENT SMITH: And your preference is the rotating shifts over seven days.

PN639

MR O'GRADY: Yes, the clause that the Minister submitted.

PN640

DEPUTY PRESIDENT SMITH: Thank you.

PN641

MR O'GRADY: Just whilst I have you with Mr Benfell's version of the award, page 71 is the issue of the shift penalties. You'll see the marking of the definition of ordinary hourly rate. This arises from the Minister's endeavours to clarify the ordinary rate of pay through various parts of the award. The Minister submits that the approach that he has taken is consistent with the exposure drafts and the modern award standard formula that is adopted, and there is specific acknowledgement of the inclusion of shift penalty payments for the purposes of annual leave but not other types of leave.

PN642

Can I also just note for the sake of completion. It has largely become irrelevant because of general agreement, but in terms of paragraph 12.5 of the Minister's reply submission I'm afraid there are two errors in terms of paragraphs of the 1998 award that are referred to. It's at paragraph 12.5 on page 25 of the Minister's reply submission. The reference in B to 21.1.3 should be 21.2.3 and the reference in D to 28.7 should be a reference to 27.8. The next point I want to deal with is clause 8.3(b) which is the issue that arose as a result of your Honour Deputy President Smith's question concerning the period of up to 26 weeks. The Minister is comfortable with a clause that rather than referring to 26 weeks is:

PN643

…over a period of up to 28 days or the employee's roster cycle (whichever is longer).

PN644

And the Minister submits that that would cater for your Honour's concern.

PN645

DEPUTY PRESIDENT SMITH: Yes.

PN646

MR O'GRADY: Just one point in relation to the 38 hour week, do not overlook clause 24.1.1 of the 1998 award which of course identifies the specific groups of employees who remain on a 38 hour week, so that the submissions in relation to the 38 hour week go to the other employees other than those specifically provided for in 24.1.1. In terms of the up front crediting of personal and carers' leave we just wish to make one point about that because the CPSU submission draws upon the evidence of Ms Van Barneveld, but the one thing that's not in the material is identifying any point of distinction between employees in the public service and employees in the private sector, and so the Minister submits that there is no rationale for adopting a position different to the standard modern award provision of accrual of personal and carers' leave.

PN647

In relation to adult apprentices, the Minister consciously left blank the various percentages in the table in - I think it's clause 10.6 of his draft, and the Minister accepts that it's a matter for the Full Bench to determine those percentages, having heard the submissions that it has heard. The cashing out of annual leave; the submission of Mr Nicolaides was - there are two things I want to point out about the submission. One is an obvious one and that is you ought have no regard to the matters that took place in the negotiations at all. Those are matters that are without prejudice.

PN648

The other proposition is this, it's not a question of any change of position on the part of the Commonwealth from taking a broad view to now taking a narrow view. The provision is what the provision says. What the Minister has sought to do is to identify the practical circumstances in which the provision will have effect, and that's the submission I went to yesterday. In essence, to just put some flesh on the bones of that by reference to the relevant statutory provisions, of course machinery of government changes will generally follow an amendment to the administrative arrangement orders, and so it is the case that staff are sometimes moved from one agency to a newly created agency.

PN649

The former agency or the old agency may well have an enterprise agreement. Being newly created, the new agency will not have an enterprise agreement and it's in those circumstances that when the employee commences employment with the new agency that the award applies. Now of course it's open to the Public Service Commissioner to make a determination that the terms of the old enterprise agreement will apply, but those terms apply by reason of the determination not by reason of the operation of the enterprise agreement. So in those circumstances you have a contest between a public service determination and the operation of the Act, and of course section 93 only permits cashing in when there's an award or agreement term in place.

PN650

So it's in those circumstances, absent an award term permitting cashing in of leave, that an employee who has had the entitlement does not have the entitlement, and due to the unique circumstances of the public service and the way in which people can be moved at the direction of the Commonwealth, it's submitted that it's appropriate for such a term to be included. In terms of the agency-specific provisions in the schedule the Minister notes your Honour Vice-President Catanzariti's request of Mr Benfell. What the Minister hopes is that in crafting the provisions in a way which they are to be part of the award rather than a schedule, that the sit properly with the award and form of course a fair, relevant set of minimum terms and conditions of employment and our - - -

PN651

DEPUTY PRESIDENT SMITH: Do you have a preference if we're not minded to set them aside? Do you have a preference whether they're in award or as an appendix agency-specific?

PN652

MR O'GRADY: I can answer that question before I sit down, your Honour.

PN653

DEPUTY PRESIDENT SMITH: Thank you.

PN654

MR O'GRADY: But what we do say about it is that it's really a matter for the Full Bench to determine as a matter of principle the appropriateness of those matters to be included, and if it then does so, perhaps not unlike the Victorian Teachers Award, then the parties can identify the finer detail of the provision. So the Minister doesn't seek to buy into the exercise that your Honour Vice-President Catanzariti has asked of the union now. But the way of dealing with it I think is to be by way of finalising the terms of the award in the way that the teachers' matter was dealt with.

PN655

In fact that's the final thing that the Minister wants to say and that is that, given that there are still these few issues lingering around, that the appropriate order after today is probably directing the parties to finalise the terms of the award to accord with the Full Bench's decision on matters of principle. Yes, the Minister has no preference as to whether it should be in or out, your Honour, but so long as it's in conformity with the provisions of the award and of course, the Minister would submit, the modern awards objective.

PN656

DEPUTY PRESIDENT SMITH: Thank you.

PN657

MR O'GRADY: Those are the submissions.

PN658

THE VICE PRESIDENT: The decision is reserved. The Commission is adjourned.

<ADJOURNED INDEFINITELY [2.01PM]

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #A CPSU REVISED DRAFT AWARD - MARKED UP PN358
EXHIBIT #B CPSU'S WRITTEN SUBMISSIONS WITH SUPPORTING MATERIAL PN360
EXHIBIT #C AMWU WRITTEN SUBMISSIONS TOGETHER WITH LETTER TO THE COMMONWEALTH DATED 28 NOVEMBER AND REPLY FROM THE COMMONWEALTH DATED 11 DECEMBER PN585
EXHIBIT #D WRITTEN SUBMISSIONS OF THE ANMF PN586
EXHIBIT #B (ADDENDUM) TWO STATEMENTS OF MS HELEN BULL PN612