AG2017/4263, Transcript of Proceedings [2018] FWCTrans 24 (5 February 2018)

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PN1

THE DEPUTY PRESIDENT: Thank you everyone. I'll take appearances first, and you can remain seated.

PN2

MS M HICKMAN: Thank you. Megan Hickman from MRS.

PN3

THE DEPUTY PRESIDENT: Thank you.

PN4

MR J McTAGGART: Jonathan McTaggart from MRS.

PN5

THE DEPUTY PRESIDENT: Thank you.

PN6

MR T JACKSON: Tim Jackson from the AMWU.

PN7

THE DEPUTY PRESIDENT: Thank you.

PN8

MR B McDOUGALL: And Brad McDougall from the CEPU.

PN9

THE DEPUTY PRESIDENT: Thank you. I note there's nobody here from the CFMEU. I'll just check that they were notified of the hearing. Just bear with me for a moment. I'll just go off the record.

SHORT ADJOURNMENT [10.08 AM]

RESUMED [10.09 AM]

PN10

THE DEPUTY PRESIDENT: I apologise to the parties. As a result of an oversight in my office, the CFMEU weren't notified of this hearing, and one of the issues that was going to be dealt with was in fact whether the CFMEU should be entitled to be heard in relation to this agreement. So what I propose to do at this stage is simply deal with the issues that I raised in my email and the issues that the CFMEU raised in its correspondence, without dealing with the issue of whether they should be heard, and we will need to obviously deal with that on another occasion. The first thing I suppose that is relevant, and I only did the comparison for the purposes of the Manufacturing Award, and I'm not quite sure what the role of the Vehicle Award is in all of this, but the issue that is raised and I can't ignore it, which is that this business operates also in the coal mining industry and therefore a relevant award for that purpose is the Black Coal Mining Award, what do the parties say in relation to that?

PN11

MS HICKMAN: Our clients are coal miners, so we actually operate in providing services to the mining industry. We're not actually in the mining industry ourselves. Our previous agreements that our company has worked under have all been under the Manufacturing Award. Our competitors in a similar business to us are all under the Manufacturing Award. We did some sense checks at the beginning of the negotiation period and that found that it was also we should be covered under the Manufacturing Award.

PN12

THE DEPUTY PRESIDENT: What do you say in relation to the scope of the Black Coal Mining Award? Have you looked at that?

PN13

MS HICKMAN: We have, yes, and we do not believe that it applies to our business. So we engage with mining companies. We've got a lot of offsite work that we deal with, so we have work in our workshops. Any contracts that we have with the mining companies are for work off‑site. We do provide ad hoc labour as requested on‑site.

PN14

THE DEPUTY PRESIDENT: Mr Jackson, what's the AMWU's view in relation to this issue?

PN15

MR JACKSON: Predominantly my view would be the Manufacturing Award. In the past, similar companies have I guess had the trial and tested the Black Coal Award - Hitachi, WesTrac - but they from my understanding haven't been successful. The likes of the competitors that Ms Hickman talks about - Monadelphous, Hitachi, Programmed - all do the same similar work and they all fall under the Manufacturing Award, so my view would be the Manufacturing would be better.

PN16

THE DEPUTY PRESIDENT: Are you aware of any decisions where this has been determined?

PN17

MR JACKSON: None that I'm aware of. I did seek some advice from our legal office Friday about that and we were unable to find any.

PN18

THE DEPUTY PRESIDENT: Right. Mr McDougall, you're here from the CEPU.

PN19

MR McDOUGALL: Yes.

PN20

THE DEPUTY PRESIDENT: The CEPU hasn't made an application to be bound by this agreement, or covered by - - -

PN21

MR McDOUGALL: We're a party to the agreement.

PN22

THE DEPUTY PRESIDENT: No, you're not, because you haven't filed the appropriate form to seek to be covered by it.

PN23

MR McDOUGALL: I'd have to check into that. I'm pretty sure that was done at the time of lodgement.

PN24

THE DEPUTY PRESIDENT: No. It's not on my file.

PN25

MR McDOUGALL: All right. I'll have to check with our legal department, because I'm pretty certain.

PN26

THE DEPUTY PRESIDENT: What's the ETU's view?

PN27

MR McDOUGALL: The same as our colleagues from the AMWU. Given that it's purely a maintenance agreement and the majority of competitors are under the same award, we see no reason for there to be any different. As Ms Hickman explained, they rarely do on‑site work. Most of the work is obtained through the workshop; therefore, the machinery and stuff is brought back to the MRS workshop, I think. The only time that they may appear on‑site is if the machinery can't be removed for any reason from the site.

PN28

THE DEPUTY PRESIDENT: All right. I sent an email to the parties in relation to the better off overall test, which raised a number of issues, one just in relation to the better off overall test, but also in relation to the explanation provided to the employees of the effect of the agreement if these matters were not recognised as less beneficial. So Ms Hickman, this is your opportunity to make submissions to me as to why I should approve this agreement in relation to the better off overall test and genuine agreement.

PN29

MS HICKMAN: We've been negotiating since early last year, so there have been several - I think there were about 14 representatives at its peak. Throughout that time we were in contact and gave regular updates with our employees. There were various toolbox talks, specific meetings, sessions held, frequently asked questions; there were items talked in there in regards to areas that - it was the positives and negatives; there were sessions held not only by company representatives but also employee representatives throughout that entire time. The award and the enterprise agreement were made available to all employees. We had approximately 195 employees, of which I think 163 voted, so there was a high take‑up of that. There's certainly a number of items that for our employees they do end up being more beneficial, and they're noted in our form 17 but I can certainly go through those as well. We believe on balance that from an overarching perspective our employees absolutely are better off under this agreement.

PN30

THE DEPUTY PRESIDENT: There's no doubt they're better off in terms of money, but are they better off in terms of their terms and conditions? Certainly the wage rate is higher and that has got to be balanced, but there are certain, as I say, diminutions in conditions, particularly around hours of work for both full‑timers and part‑timers; obligations imposed on them that are not imposed on the modern award; apprentices - there are no terms and conditions for apprentices in the agreement, despite the fact that the agreement provides for apprentices. I mean, one, if those things weren't - when you had your final meeting when you were going to explain the terms of the agreement, or however the Act words it, if you never pointed out to the employees that these were less beneficial, how were they expected to genuinely agree?

PN31

MS HICKMAN: From an apprentice's perspective, we treated them the same as all other employees throughout the process. So there are certainly areas that they are better off than the award, and those areas not are only in the rate, but things such as we don't pro rata allowances for them, we include them in our redundancy provisions, we include them as an adult apprentice when they turn 21, not only if they enter when they are 21. As you mentioned, our rates are considerably higher. The higher - - -

PN32

THE DEPUTY PRESIDENT: But there are none of the provisions that deal with payment of fees and text books; there's none of it about travel for block release; there's nothing about competency‑based progression. All the provisions that exist in the award to deal with apprentices' entitlements are simply missing from your agreement.

PN33

MS HICKMAN: In regards to the competency side, I believe that for an apprentice to be signed up under state training, all of those areas need to be done. In regards to the block release, the apprentices that we have going to TAFE are all local TAFEs, so there are no overnight stays available. We do have a clause in there that covers for employee reimbursement of expenses if they were to, for whatever reason, have to go to a TAFE that's not a local TAFE, but we've never had that; then they would be covered for their expenses under that. I do agree that it hasn't noted the text books. We do pay text books, so that was an oversight on our behalf not to include that in the enterprise agreement, but our history absolutely shows that we do pay our apprentices text books.

PN34

THE DEPUTY PRESIDENT: That may be the case but there's nothing obliging you to under this agreement.

PN35

MS HICKMAN: Mm‑hm.

PN36

THE DEPUTY PRESIDENT: Anyway, I'm interrupting you. Please continue with your submissions.

PN37

MS HICKMAN: That's okay. We believe that the higher base rate not only looks at it being a higher base rate, but it also has the benefit of including higher overtime and superannuation calculations. Our leading hands aren't based on how many people are under them. We've gone with the highest amount without having to factor that in or pro rata that. And night shift allowance is higher than the award. We've certainly provisioned for an annual CPI increase, and we have a substantial clothing allowance also. Some of the items that we have included in there, such as company policies and procedures, we acknowledge that it's not in the award; however, we don't necessarily recognise that as being of a detriment to our employees for that being expected behaviour to follow those.

PN38

THE DEPUTY PRESIDENT: How is it not a detriment when a breach of a policy under a contract of employment would find in damages, whereas a breach of the agreement finds in the penalty? If you breach the agreement, you can be subject to penalty provisions. If you breach a company policy, depending on whether it forms a term of your contract of employment, you might be liable for damages but no penalty. How can it not be a disadvantage to have it in the agreement?

PN39

MS HICKMAN: I believe it's one of those items. The enterprise agreements are put in place to be able to put in company‑specific, negotiable items and that definitely was one of those. There was certainly no opposition throughout the process in regards to that. There was no concern raised through any of our meetings that I recall in regards to company policies and procedures.

PN40

THE DEPUTY PRESIDENT: But that's not the test, Ms Hickman. The test is whether the agreement passes the better off overall test, and I have to have regard to matters which are more beneficial and I have to have regard to things that are less beneficial, and then it's a balancing act, and it seems to me that to be subject to a penalty provision for breach of a company policy is not more beneficial for employees.

PN41

MS HICKMAN: Mm‑hm.

PN42

THE DEPUTY PRESIDENT: The fact that nobody has opposed it isn't the test at all. Continue.

PN43

MS HICKMAN: Would you like me to go through the other items that you've raised?

PN44

THE DEPUTY PRESIDENT: Yes, please.

PN45

MS HICKMAN: The first one is in regards to clause 6.3, so types of employment, and this together with clause 19.3, hours of work and scheduling, how it permits the changes to the agreement without the employee's consent. So my understanding, we're talking about part‑time employment here.

PN46

THE DEPUTY PRESIDENT: Yes.

PN47

MS HICKMAN: And the fact that there's not a provision for the alteration of hours by agreement. The intent when we were doing this is clause 6.3 talks about when a part‑time employee is engaged that we determine their working hours and then we talk about the fact later that a roster can be changed by 24‑hours' notice. The intent there was, when someone starts, we absolutely look at their arrangement, and from a generalised perspective, 19.3 talks about any changes to that. Our employees understand the nature of our work and that a lot of our rosters can be determined by our client needs based on the work load, but I do appreciate the fact that there hasn't been a provision for the alteration of hours by agreement per se.

PN48

THE DEPUTY PRESIDENT: Well quite the contrary. They can be changed at the absolute discretion of the employer.

PN49

MS HICKMAN: Mm‑hm.

PN50

THE DEPUTY PRESIDENT: Some consideration was given to this during the latest - not in relation to this award in particular, but in relation to a number of other awards in relation to part‑time employees, and the Award Modernisation Full Bench was very clear that this right is a substantive right for part‑time employees. Part‑time employees are often balancing work with other matters, which they don't have the flexibility to change, particularly, for example, if they're balancing work with child‑minding responsibilities. The ability to change your days of child care or your days of custody are difficult things to negotiate, and to be able to have employees' hours of work simply changed at the discretion of the employer for part‑time employees throws all those matters into serious difficulty, and the Full Bench did not approve any variations to the part‑time provisions in other awards to enable employers to unilaterally change part‑time employees' hours of work.

PN51

MS HICKMAN: It certainly wasn't an intent to look at it in that way, but I do appreciate that it is something that the provision hasn't been there. The next item that was raised talks about clause 10.9, and then it speaks about abandonment. Now, 10.9 isn't abandonment, so I just would like some clarification there, please?

PN52

THE DEPUTY PRESIDENT: I just now have to find the abandonment of employment clause.

PN53

MS HICKMAN: Thank you. I believe the 10.1 to 10.3 provides for abandonment of employment.

PN54

THE DEPUTY PRESIDENT: Yes, it does. It's a reference to the abandonment of employment clause being less beneficial than the equivalent provision in the modern award. Let me just call that up.

PN55

MS HICKMAN: In the award it's clause 21.1.

PN56

THE DEPUTY PRESIDENT: Thank you. This provision says three days, and that's the same as the modern award.

PN57

MS HICKMAN: That's correct.

PN58

THE DEPUTY PRESIDENT: And that's prima facie, and then there's the reasonable attempts. But what the award says, if within a period of 14 days from your last attendance, blah blah blah, has not established, et cetera, so there's a two‑week period to determine whether the employee has in fact abandoned their employment, and it seems to me under yours it could occur after three days.

PN59

MS HICKMAN: That's correct, yes. If somebody doesn't attend for three consecutive shifts, which make longer than three days, or three days; however, we do have to make reasonable attempts at trying to contact the employee, which would certainly push that timeframe out slightly.

PN60

THE DEPUTY PRESIDENT: All right.

PN61

MS HICKMAN: The next item on your list was the company policies and procedures, which is what we've already spoken about. The next item was in regards to clause 19. This is hours of work and scheduling, and I believe this is probably similar to the discussion we just had with the part‑time employees in regards to the 48‑hours' notice.

PN62

THE DEPUTY PRESIDENT: There is provision - and there should be - and I don't think it's included in yours, because your consultation clause doesn't contain the provision about consultation, about changes to ordinary hours, and because it doesn't comply with the Act then the model consultation clause will apply. But if you look at - I mean, the hours of work are averaged over a roster cycle.

PN63

MS HICKMAN: That's correct.

PN64

THE DEPUTY PRESIDENT: There's no definition of a roster cycle. So theoretically, under your agreement, that could be averaged over any number of weeks, and the award provides that it's rostered over effectively a four‑week period - but your agreement doesn't. It just talks about a roster cycle; you can change the roster cycle, so you could average these over a year.

PN65

MS HICKMAN: That certainly wasn't the intent there at all. That was obviously just an omission on our behalf. We certainly do work towards the correct roster cycles absolutely.

PN66

THE DEPUTY PRESIDENT: But again, it's not in the agreement.

PN67

MS HICKMAN: That's correct. The next item that was raised was clause 20, travel.

PN68

THE DEPUTY PRESIDENT: Yes.

PN69

MS HICKMAN: This was something that was highly discussed throughout our negotiation period. Where the negotiations landed was that where travel could be redeemed by our clients, we absolutely would pass that on to our employees; otherwise travel would not be paid.

PN70

THE DEPUTY PRESIDENT: So you say that was one of the trade‑offs for the higher wages?

PN71

MS HICKMAN: Absolutely, and it was something that was discussed throughout the entire bargaining period. It was a very big topic on both sides.

PN72

THE DEPUTY PRESIDENT: Go on.

PN73

MS HICKMAN: The next item was clause 22, overtime hours. I'm just wondering if we can get a little bit more clarification there, please?

PN74

THE DEPUTY PRESIDENT: One of the difficulties with this is, because your hours of work provision is so unclear, it's not clear when overtime would clock‑in, because it's not clear what the ordinary hours of work are. So it's very difficult for me to assess when overtime actually clocks in, particularly given your ability to average hours in the way that you do. Theoretically somebody could work 60 ordinary hours one week and, you know, not the next, and because there's nothing in this that enables me to make that assessment, I can't work out what the impact of the overtime clause is because the ordinary hours of work clause is so vague as to what ordinary hours are.

PN75

MS HICKMAN: The ordinary hours of work clause talks about the ordinary hours of work will be 38 hours per week averaged over the roster cycle, but I appreciate what you were saying before about the timeframe of that. As I said before, we certainly do work towards the averaging over the 28‑day period or the four‑week period, and that just seems to be an oversight that we haven't specified that within the agreement.

PN76

THE DEPUTY PRESIDENT: So you get a provision that gives you - rosters will be worked - so you have 10 hours off?

PN77

MS HICKMAN: That's correct.

PN78

THE DEPUTY PRESIDENT: What happens if you don't? You simply can't not do it - is that - - -?

PN79

MS HICKMAN: No, for fatigue purposes you would have to have a 10‑hour break.

PN80

THE DEPUTY PRESIDENT: Because the award has a provision that deals with the situation if you are required to return to work with less than 10 hours. Are you saying, simply under this agreement you couldn't require somebody to return to work with less than 10 hours?

PN81

MS HICKMAN: Is that your understanding, Jon?

PN82

MR McTAGGART: Yes, it would be extremely rare. I understand that it would be - if they're required to come back without a 10‑hour break, it would be paid at all double‑time until - - -

PN83

THE DEPUTY PRESIDENT: Yes, that's what the award provides, but that's not what your agreement provides.

PN84

MR McTAGGART: Yes.

PN85

THE DEPUTY PRESIDENT: It just simply says you can't do it. It has no provision of what you get paid.

PN86

MS HICKMAN: So we haven't covered that scenario.

PN87

THE DEPUTY PRESIDENT: Yes.

PN88

MS HICKMAN: With that, the fact that we have put company policies and procedures in here, and our fatigue policy does cover that scenario - - -

PN89

THE DEPUTY PRESIDENT: Does it provide that you get the double‑time?

PN90

MR McTAGGART: Employees, if they do have to work - which hasn't happened for quite a long time - they would be paid it.

PN91

MS HICKMAN: And the policy stipulates that?

PN92

MR McTAGGART: Yes.

PN93

MS HICKMAN: Yes.

PN94

THE DEPUTY PRESIDENT: Does the policy actually refer to that? And one other thing, were employees given copies of all the policies when they voted on the agreement?

PN95

MS HICKMAN: They weren't physically given copies, but they were certainly available to them. We have computers set up that have the policies loaded on them.

PN96

THE DEPUTY PRESIDENT: Can I be provided with a copy of the policy?

PN97

MS HICKMAN: Certainly.

PN98

THE DEPUTY PRESIDENT: And do people ever get called back to work?

PN99

MR McTAGGART: Yes.

PN100

MS HICKMAN: On occasion.

PN101

THE DEPUTY PRESIDENT: Yes.

PN102

MS HICKMAN: We do have a provision in the agreement for call‑out.

PN103

THE DEPUTY PRESIDENT: Yes.

PN104

MS HICKMAN: That talks about a minimum four hours at double‑time.

PN105

THE DEPUTY PRESIDENT: Okay.

PN106

MS HICKMAN: The next item raised is clause 26.3, public holiday.

PN107

THE DEPUTY PRESIDENT: Yes, and I think you noted in your application that you were aware that that provision would not be compliant with the National Employment Standards and you were going to provide an undertaking in relation to that.

PN108

MS HICKMAN: That's correct. That ended up in there because it was in the previous agreement and we copied that, and it wasn't raised until late in the piece and we weren't quite sure. So we thought we'd certainly leave it there, and certainly happy to provide an undertaking on that item if required.

PN109

THE DEPUTY PRESIDENT: Well it would be required.

PN110

MS HICKMAN: Okay. The next item is clause 27.6(b). Once again, may I just ask for some further clarification on this item, please?

PN111

THE DEPUTY PRESIDENT: Okay, annual leave for shift workers - just bear with me, I've just got to get the annual leave clause up.

PN112

MS HICKMAN: Clause 41.3 of the award.

PN113

THE DEPUTY PRESIDENT: A shift worker is defined in the award as, "A seven‑day shift worker is regularly rostered to work Sundays and public holidays," and in yours it is: "A shift worker who is required to work in shifts which are continuously rostered for 24 hours a day seven days a week."

PN114

MS HICKMAN: Mm‑hm.

PN115

THE DEPUTY PRESIDENT: That appears to me to be more onerous than the modern award, because I just have to be working on a seven‑day shift roster. So under yours, unless there was a night shift, nobody would get the extra week's annual leave, because you've got to have 24‑hour coverage, whereas I could be an afternoon shift worker who's regularly rostered to work on Sundays and public holidays under the - and there might only be the two shifts, morning and afternoon - and under your agreement I wouldn't get the extra week, but under the modern award I would.

PN116

MS HICKMAN: I believe in our definition and the way in which I read it, Deputy President, is: a shift worker is an employee required to work in an enterprise with which shifts are continually rostered 24 hours a day seven days a week. So that's the enterprise, and then the employee is regularly rostered to work those shifts.

PN117

THE DEPUTY PRESIDENT: Yes, but if the - - -

PN118

MS HICKMAN: Yes, and regularly on Sundays and public holidays. I understand what you mean.

PN119

THE DEPUTY PRESIDENT: Yes, under the modern award I don't have to be working in an enterprise that works a 24‑hour shift pattern. I could be working in an enterprise that works days and afternoons, and I'd still get the extra week if I regularly worked Saturdays and Sundays and public holidays.

PN120

MS HICKMAN: Mm‑hm.

PN121

THE DEPUTY PRESIDENT: It's just one of the other factors I have to have regard to.

PN122

MS HICKMAN: Yes, absolutely.

PN123

THE DEPUTY PRESIDENT: And it might be inconsistent with the National Employment Standards.

PN124

MS HICKMAN: We're certainly happy to correct that if - - -

PN125

THE DEPUTY PRESIDENT: What I propose to do after hearing from all the parties in relation to this matter is give you an opportunity to consider the discussion that we've had and see what, if any, undertakings you want to provide to me to deal with any of the matters that I have raised.

PN126

MS HICKMAN: Thank you.

PN127

THE DEPUTY PRESIDENT: And I'd obviously give the bargaining representatives an opportunity to comment on them, and it will only be then if I'm not satisfied that the undertakings resolve my concerns that I'll issue a decision in relation to the approval - I'll issue a decision in relation to the approval either way, but I will give you an opportunity to give undertakings in relation to the agreement.

PN128

MS HICKMAN: Thank you. The next item that was raised was clause 36, so deductions, motor vehicles, equipment, tool of trade, company property.

PN129

THE DEPUTY PRESIDENT: Yes.

PN130

MS HICKMAN: This is where we speak about that if an employee hasn't taken reasonable steps to prevent loss, theft or damage to company equipment that they would repay reasonable repair or replacement costs, and I believe that your concern is that there's no provision in the award for that.

PN131

THE DEPUTY PRESIDENT: Well there are two things. There's no provision in the award for it, but equally, there's a provision in the Act which prevents you doing it. There are provisions in the Act which enable, under a modern award, for there to be - I suppose you're not actually saying - oh no, you're going to deduct it. There are provisions in the Act which prevent you deducting money from an employee's wages without their consent, and you might have a look at those provisions. You will find them at Part 2.9 Terms and Conditions of Employment - Payment of Wages, and there are provisions that enable you to deduct moneys if they're authorised in writing by the employee, and it's principally for the employee's benefit.

PN132

MS HICKMAN: Mm‑hm.

PN133

THE DEPUTY PRESIDENT: And there's a provision which says the deduction is authorised by an employee in accordance with an enterprise agreement, but the agreement can't be the authorisation.

PN134

MS HICKMAN: Okay. So in this case where it says that they agree to repay the costs, is that the same as saying that we would deduct it, or is that - - -?

PN135

THE DEPUTY PRESIDENT: No, there's two different things. There's the issue that this imposes an obligation on them not found in the modern award, and secondly, the fact that you say you will deduct the costs from any unpaid wages, if they leave before they've repaid it, is inconsistent with the Act. So the two parts I have to consider, one, the obligation itself, I have to put that in the weighing up, but secondly, the bit about deduction is inconsistent with the Act.

PN136

MS HICKMAN: Okay. So under this clause it says that they agree to repay the cost. It doesn't say that we will deduct that.

PN137

THE DEPUTY PRESIDENT: (Quotes)

PN138

If an employee fails to return any company‑supplied equipment in a fair condition upon termination of the employment, after taking into account fair wear and tear, the employee agrees the company is permitted to deduct the reasonable repair and replacement costs from the employee's unpaid wages.

PN139

MS HICKMAN: Okay. Apologies, Deputy President, I didn't have that clause noted. The next item is clause 37.4, which I assume will be of that same vein. We talk about where, as a result of negligence of the employee, that they would be liable for replacement of their clothing.

PN140

THE DEPUTY PRESIDENT: Yes.

PN141

MS HICKMAN: The award talks about where as a result of an employee's items being damaged, the employer will replace it. It doesn't talk about the employee damaging - - -

PN142

THE DEPUTY PRESIDENT: That's right.

PN143

MS HICKMAN: This was an item that was negotiated. It was predominantly due to - from a safety aspect of we have had some clothing damaged from people not wearing their correct PPE, so this in discussions was an attempt at saying well if you wear your correct PPE then there won't be any damage to clothing, therefore this won't apply. So that was certainly the intent in the discussion from that item.

PN144

THE DEPUTY PRESIDENT: Is this about the employees' clothing?

PN145

MS HICKMAN: Correct, yes.

PN146

THE DEPUTY PRESIDENT: Right.

PN147

MS HICKMAN: The company provides their clothing and the appropriate PPE for that, so technically there shouldn't be any damage to it as a result of negligence of the employee not wearing their PPE. However, it was to cover that scenario, as I said, for the basis of that discussion.

PN148

THE DEPUTY PRESIDENT: Yes.

PN149

MS HICKMAN: The next item was clause 42, other employment and conflicts of interest. I believe that we covered this the same as the company policies and procedures. The two were hand‑in‑hand in that discussion period. The next item was clause 45, workplace flexibility:

PN150

does not require the employee to be better off or provide that the agreement is a permitted matter and is not an unlawful term.

PN151

There are a couple of subclauses under there where we talk about - so clause 45.3 - where we say it's not to disadvantage the individual employee in relation to their terms and conditions of employment.

PN152

THE DEPUTY PRESIDENT: But the thing is that the individual flexibility agreement has a "better off" test, not a "no disadvantage" test. That's the difference.

PN153

MS HICKMAN: Yes.

PN154

THE DEPUTY PRESIDENT: I mean, it's the difference between the way the old Act used to work and the new Act worked, which was the old Act had a "no disadvantage" test for agreement and approval, as opposed to a "better off" test, and there's a difference between not being disadvantaged. You might be in exactly the same position, as opposed to be being better off.

PN155

MS HICKMAN: Okay. I certainly do acknowledge that all of the wording in there is talking about "no disadvantage" then, not "better off." The next item is in regards to clause 46, which is the workplace consultation, and I believe we have spoken about this as well in regards to the consultation about the hours of work.

PN156

THE DEPUTY PRESIDENT: Yes.

PN157

MS HICKMAN: And then the following item was in regards to apprentices, which we spoke about at the beginning of the discussion.

PN158

THE DEPUTY PRESIDENT: It's also very difficult for me to assess the - - -

PN159

MS HICKMAN: Classifications?

PN160

THE DEPUTY PRESIDENT: - - - classification structures, given there are no descriptors.

PN161

MS HICKMAN: In our form 17, we've done the classifications mapping, which I attached the document to our submission, and there's also a little snapshot of it in clause 3.4. The classification out of the award for the apprentices is that they're working towards C10 - Engineering/manufacturing tradesperson level 1.

PN162

THE DEPUTY PRESIDENT: Yes. Where does the Vehicle Award come into all of this?

PN163

MS HICKMAN: Some of our employees we had covered under the Vehicle Award prior to this, so we had two other enterprise agreements and the Vehicle Award, and we accumulated all of those employees into this. At the beginning of the negotiation period, we definitely thought that the employees would be covered under the Vehicle Award. We confirmed that throughout the discussions and got advice from Fair Work at that time, and was certainly advised that it should be the Manufacturing Award as the broader basis.

PN164

THE DEPUTY PRESIDENT: Yes. I always wondered why we - other than history - why we ended up with a Vehicle Award as opposed to a Manufacturing Award, but I think that it's got a lot to do with history, separate unions, and a whole range of other reasons why it did, but you know, manufacturing is manufacturing.

PN165

MS HICKMAN: Yes, and the awards are very similar. When you look at their terms and conditions, a lot of them are extremely similar.

PN166

THE DEPUTY PRESIDENT: Yes. What do the union bargaining representatives say in relation to these matters?

PN167

MR JACKSON: Ms Hickman is correct. We definitely negotiated a lot of them. There were some of these items that were raised today that were flagged during the negotiations, particularly the hours of work, deduction and those types, with concerns around the Act, and in PPE‑wise and Work Health and Safety Act levering from an employee. But Ms Hickman is right. The previous management was a big issue with MRS prior to this and collaborating those agreements was quite a task, but there definitely are some clauses that need to be addressed - happy to do what we've got to do to get this sorted out.

PN168

THE DEPUTY PRESIDENT: Thank you.

PN169

MR McDOUGALL: I would have to agree with Mr Jackson. In defence of the company, the basis of this agreement was from an agreement which was negotiated with an enterprise prior to MRS taking over, so having to negotiate virtually a new agreement for a new enterprise, being MRS, and basically being asked to use the basis of a previous agreement, which probably wasn't as good as it should have been, is a tough task and I believe some of these clauses may be straight out of that agreement, which probably didn't form discussions during negotiations. Obviously there were key matters that were discussed, and others which just sort of came across from a prior agreement. So I'm guessing that some of these problems probably stem from there, so more than happy to do what needs to be done to fix it up.

PN170

THE DEPUTY PRESIDENT: What I propose to do is - how long do you think you'll need to decide what, if any, undertakings you want to provide?

PN171

MR McTAGGART: End of the week?

PN172

THE DEPUTY PRESIDENT: End of the week?

PN173

MS HICKMAN: Yes, by the end of the week absolutely.

PN174

THE DEPUTY PRESIDENT: Well if you provide me with any undertakings that you wish to provide by the end of the week and I will consider them. I'll have to deal with this issue of the CFMEU not having been notified of this hearing, which may require another hearing simply to deal with that issue as to whether they should be heard at all, and you will be notified of that as well, and I apologise for the inconvenience to the parties that arose out of an administrative error in my Chambers. Thank you.

PN175

MS HICKMAN: That's okay. Thank you.

ADJOURNED INDEFINITELY [10.54 AM]

Fair Work Commission Transcripts

AG2017/4263, Transcript of Proceedings [2018] FWCTrans 24 (5 February 2018)