Home | Databases | WorldLII | Search | Feedback Australian Industrial Relations Commission Transcripts

You are here: 

AG2003/ 855 , Transcript of Proceedings [2003] AIRCTrans 822 (12 March 2003)

AUSCRIPT PTY LTD
ABN 76 082 664 220

Level 4, 179 Queen St MELBOURNE Vic 3000
(GPO Box 1114 MELBOURNE Vic 3001)
DX 305 Melbourne Tel:(03) 9672-5608 Fax:(03) 9670-8883

TRANSCRIPT OF PROCEEDINGS


O/N VT1768
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER LEWIN

AG2003/ 855 

APPLICATION FOR CERTIFICATION
OF AGREEMENT

Application under section 170LK of the Act
by Pickering Transport (Melbourne) Pty
Limited for certification of the Pickering
Transport (Melbourne) Pty Ltd Agreement

MELBOURNE

12.28 PM, FRIDAY, 21 FEBRUARY 2003

PN1

MR A. SPOTTISWOOD: I appear for Pickering Transport Group (Melbourne) Pty Limited and with me is MR C. ENGI, appearing as the employee representative.

PN2

THE COMMISSIONER: Thanks very much, Mr Spottiswood. Please be seated, Mr Engi, and Mr Spottiswood, you are going to speak to the application in a particular respect which concerns a matter that has been the subject of some exchange of correspondence between myself and you dated 28 January in the first instance on my part and I think undated, the reply - sorry, 5/2.

PN3

MR SPOTTISWOOD: Yes, thank you, Commissioner.

PN4

THE COMMISSIONER: Now, what has happened, just for the record, is that an application for the certification of an agreement has been made under section 170LK of the Workplace Relations Act and among other things, the Commission is required to be satisfied that the terms of the agreement do not disadvantage the employees covered by the agreement. Now, that is not the only thing I have to do, but that is one thing I have to do and in my letter to you of 28 January I took the view that the agreement was unfit for certification because the memorandum provides that contrary to the terms which it expresses as to the wages and conditions of employment of the employees, other agreements may be made.

PN5

And my reason for saying that the agreement was not fit for certification in that respect was that in my view it is impossible to know whether or not those other agreements which might be made will or will not pass the no disadvantage test because the terms of them are non-existent. So that my letter was really designed to point out that clause 8 which purports to be a facilitative provision is inappropriate for a certified agreement in the terms contained in the memorandum and that was the only matter that my correspondence addressed itself to. I hope that it is clear that there are other issues as well, but today can we concentrate on this because, as I understand it, you want to retain the facilitative provisions. Is that right?

PN6

MR SPOTTISWOOD: That is correct, Commissioner.

PN7

THE COMMISSIONER: Yes, all right, and you want to put submissions to me in addition to those which are contained in your letter about why it is that those facilitative provisions, if retained in the agreement do not mean that the agreement is unfit for certification. Is that right?

PN8

MR SPOTTISWOOD: That is correct, Commissioner.

PN9

THE COMMISSIONER: All right, well, we will just concentrate entirely on this subject today.

PN10

MR SPOTTISWOOD: Okay, thank you, Commissioner. With respect to the facilitative provisions, they were actually put in there, like I said in my response to you, to really assist the employees and the employer to come to arrangements such as varying the hours, the starting hours and things like that, by agreement on an individual basis. Now, this is no different to some of the provisions in the actual award and the employer is quite happy to give an undertaking that any use of the flexibility clauses in the agreement would not go beyond what is provided for in the award, so in terms of, for example, the hours of duty, if it is say - - -

PN11

THE COMMISSIONER: Sorry, could I just ask you a question?

PN12

MR SPOTTISWOOD: Yes.

PN13

THE COMMISSIONER: The award doesn't operate in conjunction with the agreement, does it? The agreement supersedes the award in each and every respect, does it not?

PN14

MR SPOTTISWOOD: That is correct, yes.

PN15

THE COMMISSIONER: So what is the relevance of the fact that the award provides facilitative provisions?

PN16

MR SPOTTISWOOD: Well, the relevance is because they are actually provided for in the award in a very similar manner to that which is provided for in the agreement. I understood that they certainly wouldn't break - certainly if we give an undertaking, whatever you need to have, that they wouldn't break the no disadvantage test. In terms of things like flexibility in relation to the roster, the award clause - - -

PN17

THE COMMISSIONER: Well, is that what the award says? I don't have it with me. Do you have a copy of the award?

PN18

MR SPOTTISWOOD: Yes, I certainly do.

PN19

THE COMMISSIONER: Could you just hand up a copy of the award and tell me which clause you are referring to?

PN20

MR SPOTTISWOOD: I am really referring to clause 9 of the award and if we go to 9.2(1)(b), at 9.2(1)(b) it actually states - I haven't got the benefit of having it in front of me at the moment now, of course, but it states that as long as the facilitative clauses don't go against the spirit of the award basically, they can be used within the structure of the award. Now, it actually goes on to list in clause 9 matters that we have contained within the agreement, in other words flexibility in relation to rosters, meal breaks, annual leave and so on are actually virtually the same as - - -

PN21

THE COMMISSIONER: Well, let us just go through them all, yours at 21, the first one is 21.

PN22

MR SPOTTISWOOD: Right, if we look at that in relation to clause 33.2 of the award.

PN23

THE COMMISSIONER: You see, this is why I invited you to actually record this in writing. It would have actually - it may have obviated the necessity for today's hearing and I thought given the nature of what we would be doing, that it might be easier to deal with it in writing, but let us go ahead, anyway, so 21.1.3 - - -

PN24

MR SPOTTISWOOD: And 21.1.2 are actually both virtually the same.

PN25

THE COMMISSIONER: All right. Now, what is the equivalent provision in the award?

PN26

MR SPOTTISWOOD: 33.2, I believe.

PN27

THE COMMISSIONER: Yes, I think we are probably at cross-purposes, Mr Spottiswood. Clause 21.2 deals with when work is to be performed, when the ordinary hours of work are to be performed.

PN28

MR SPOTTISWOOD: Yes.

PN29

THE COMMISSIONER: Now, in the case of this agreement, it includes Saturday, whereas the award doesn't except by agreement.

PN30

MR SPOTTISWOOD: That is right, by agreement it includes - - -

PN31

THE COMMISSIONER: And it also includes Sunday.

PN32

MR SPOTTISWOOD: By agreement in the award.

PN33

THE COMMISSIONER: In the award, that is right.

PN34

MR SPOTTISWOOD: Yes, that is correct, but we have only included Saturday.

PN35

THE COMMISSIONER: Yes, but you don't actually have the facilitative provisions of the award contained in the agreement. You just refer to them generally. Do you follow what I mean?

PN36

MR SPOTTISWOOD: Yes, I do, but - - -

PN37

THE COMMISSIONER: You see, there is a gap. I mean, I understand the line of thinking that you - well, I think I do, anyway - expounding, but the document doesn't actually reflect what is in the award. It doesn't contain its terms. If you were saying to me, look, what is in the agreement, the same terms that are in the award, then I understand what you are saying and you can make a comparison of the terms of the agreement with the terms of the award for the purpose of the no disadvantage test, but the terms of the agreement are not the same as the terms of the award in relation to the working of ordinary hours on Saturdays and Sundays. All it says is that - it describes what a facilitative provision is in clause 8.1.

PN38

MR SPOTTISWOOD: Yes.

PN39

THE COMMISSIONER: And then identifies the clauses in respect of which facilitation can take place. You see, if you were to put into this agreement clause 33.2, then there would be a point to point comparison with the award. That is not what is here. It is a different thing altogether. You just make a general statement in 8.2 that you can have facilitative agreements in relation to the subject matter of what is set out there in the list. It doesn't say what the nature of the agreement will be.

PN40

MR SPOTTISWOOD: Well, it is an agreement between an employee - - -

PN41

THE COMMISSIONER: I know that, but the terms of the agreement, the detailed terms of the agreement that can be arrived at, because the award specifies those things. It doesn't say generally these provisions can be facilitated. In each and every case, it has got detailed terms as to the nature of the facilitation, so let us just go to - for example, let us have a look at time off in lieu of overtime, 26.2. You don't know where the time off in lieu of overtime provision is in the award?

PN42

MR SPOTTISWOOD: No, I am not sure, but what I would say or go to on that, Commissioner, would be that in terms of time off in lieu of overtime, what the facilitative clause is, it provides that it will be paid at or the hours will equate to time and a half or double time or whatever the actual rate accrued at, so there is no disadvantage as such to the employee.

PN43

THE COMMISSIONER: Where does that say that in the agreement?

PN44

MR SPOTTISWOOD: 26.3, overtime may by mutual agreement, okay, and provided with the time off in lieu shall be granted on the basis of - - -

PN45

THE COMMISSIONER: Yes, all right, I accept that.

PN46

MR SPOTTISWOOD: So in terms of that, it actually is no disadvantage as such to the employee and the employee may wish to take advantage of that clause.

PN47

THE COMMISSIONER: Well, is there any overtime that is payable at double time?

PN48

MR SPOTTISWOOD: There would be, yes. They don't normally work Sundays in the company, but, the answer is yes.

PN49

THE COMMISSIONER: What is the provision of the award in that respect?

PN50

MR SPOTTISWOOD: I would suspect it would be double time.

PN51

THE COMMISSIONER: No, I mean in relation to facilitation.

PN52

MR SPOTTISWOOD: I don't think there is one, in fact, on that, Commissioner. On that particular matter, there isn't an award provision as far as I am aware.

PN53

THE COMMISSIONER: For time off in lieu of overtime?

PN54

MR SPOTTISWOOD: Yes, I don't think so.

PN55

THE COMMISSIONER: All right. Well, the real issue then becomes for the no disadvantage test point of view, why should time off in lieu of any overtime only be at time and a half? If double time overtime were worked, why wouldn't it be at double time? Otherwise, the employee is going to forego point 5 of a paid hour for each hour of work.

PN56

MR SPOTTISWOOD: Yes, I understand that, Commissioner. My understanding is that there is little or no overtime worked on a Sunday, but notwithstanding that, Commissioner, as I said earlier, with regard to these facilitation clauses, they have a basis in the award and subject to your consent, of course, we would be quite willing, the employer would be quite willing to give an undertaking that they will not breach the provisions of the award. In other words, any negotiations between the employee and the employer with regard to these facilitation - - -

PN57

THE COMMISSIONER: Why not just get the agreement into - change the terms of the agreement, make it clearer? I mean, with all due respect, I don't think the agreement is sufficiently detailed to achieve that end and the undertaking is insufficiently clear. It is too generalised. There is no reason why clause 8 can't be redrafted to make it conform with the terms of the award. If that is what you are proposing to do as a matter of practice in the employment, why shouldn't the agreement state it?

PN58

MR SPOTTISWOOD: Well, it can. I think really it was a matter of trying to get the agreement completed. The company has actually wanted to have the agreement completed before Christmas and, in fact, they have been paying the rates already.

PN59

THE COMMISSIONER: Well, that is entirely up to them. I have just to concern myself with the certification of it. That is the only task that is before me.

PN60

MR SPOTTISWOOD: Yes, I understand that, Commissioner.

PN61

THE COMMISSIONER: What I am going to suggest to you is you redraw clause 8 so it is better understood and clearer in terms of what flexibility in relation to roster actually means. You see, you don't actually say whether the flexibility in the roster is majority of employees or individual employees and as you would appreciate, award provisions relating to facilitation vary according to the subject matter, whether it is an individual agreement or majority agreement.

PN62

MR SPOTTISWOOD: In the award, I believe it actually states for each of those that it can be by majority. In fact, it is a bit funny the way the award is set up. It actually has two headings in the award, one that says individual and then it also goes on and I think the next clause says by majority, but if you read the by majority, my recollection is that it actually says by individual in the same clause. It is really a bit odd, actually, in the award.

PN63

THE COMMISSIONER: You see, the problem with - I won't certify the agreement in the current terms because I am just not satisfied that this facilitation clause can pass the no disadvantage test because it is too vague. I can understand you can look at it and say, well, this is what would happen, but that is not what I have got to look at. What I have got to look at is what this clause would permit to happen, not what you think will happen and to determine that, I have to actually read the words of the clause and what it says is:

PN64

A facilitative provision provides that the standard approach in an agreement provision may be departed from by agreement between an employer and individual employee or the majority of employees.

PN65

So, all right, we have established now that there are means by which this agreement won't apply. Is that right?

PN66

MR SPOTTISWOOD: Correct.

PN67

THE COMMISSIONER: Well, that then is a problem because a facilitative provision in an award is not for the purpose of determining that the award won't apply. Under the legislation, it can only be one thing. It can be how the award applies. Now, the agreement can't be departed from. It may be applied in different ways, perhaps, consistent with the award provisions and you then go on to say that facilitative provisions in this agreement are contained in the following clauses. Now, frankly, they are not. You are just referring to the clauses in respect of which facilitation may occur. Is that not right?

PN68

MR SPOTTISWOOD: That is correct, Commissioner.

PN69

THE COMMISSIONER: Now, therein lies a crucial gap because you are saying there is a facilitation provision in this agreement. Well, there isn't. Do you follow what I mean?

PN70

MR SPOTTISWOOD: Yes, Commissioner.

PN71

THE COMMISSIONER: What you say is, for instance in clause 21.1.2 that the ordinary hours may be worked on any days Monday to Saturday inclusive. It doesn't say as the award does, that by agreement the ordinary hours may be worked on a Sunday.

PN72

MR SPOTTISWOOD: Do we need to include Sunday, because we are not asking for Sunday?

PN73

THE COMMISSIONER: Well, what is the point of the facilitation, then? What is the facilitative provision in 21.1.2?

PN74

MR SPOTTISWOOD: Because the ordinary hours in the award can be Monday to Friday or include Sunday.

PN75

THE COMMISSIONER: But read the clause. It says Monday to Saturday in the agreement.

PN76

MR SPOTTISWOOD: Yes.

PN77

THE COMMISSIONER: If you don't want to work on Sunday, what is the facilitative provision?

PN78

MR SPOTTISWOOD: To work on Saturday.

PN79

THE COMMISSIONER: Well, it says Monday to Saturday as a term of the agreement. You don't to facilitate the - do you follow what I mean?

PN80

MR SPOTTISWOOD: Yes, Commissioner.

PN81

THE COMMISSIONER: Are you sure?

PN82

MR SPOTTISWOOD: Yes.

PN83

THE COMMISSIONER: So it is redundant in relation to 21.1.2, is that not right?

PN84

MR SPOTTISWOOD: Well, if we want to use the award provision, yes, that is correct, it is redundant.

PN85

THE COMMISSIONER: But the agreement doesn't incorporate any of the terms of the award. It excludes all of them, so that the agreement speaks exclusively in relation to the days of the week on which the ordinary hours can be performed, namely Monday to Saturday. Now, that requires no facilitation unless you want to work on Sunday, does it?

PN86

MR SPOTTISWOOD: That is correct.

PN87

THE COMMISSIONER: Now, you are saying you don't want to work on Sunday.

PN88

MR SPOTTISWOOD: Not as ordinary time hours, no, certainly not.

PN89

THE COMMISSIONER: All right, but if you don't want to work on Sunday, then, what is the meaning of clause 8.2 in including clause - - -

PN90

MR SPOTTISWOOD: 21.1.2. There is a typo in that.

PN91

THE COMMISSIONER: It doesn't include that one, or does it?

PN92

MR SPOTTISWOOD: It includes 21.1.2, yes.

PN93

THE COMMISSIONER: Well, it says 22.1.2, but there is no point 2 in 22.

PN94

MR SPOTTISWOOD: No, that is a typographical error which I actually wrote when I responded to your letter. I actually pointed that out.

PN95

THE COMMISSIONER: I see, but, at any rate, I read that as 21.1.2. Obviously that is where I have got that from.

PN96

MR SPOTTISWOOD: Yes.

PN97

THE COMMISSIONER: And so do you see what I mean? There is no facilitation provision there. Without going into the question of the no disadvantage test, we are just looking at the way the agreement expresses its terms. That is an inaccurate reference. Now, if we look at 21.1.3, what is the facilitation required there?

PN98

MR SPOTTISWOOD: To work up until eight pm, six am until eight pm.

PN99

THE COMMISSIONER: Well, if that is what you want to do, you don't need this facilitation provision. You have already got that. That is just the span of hours provision, that ordinary hours can be worked at any time between six am and eight pm. That is a term of the agreement.

PN100

MR SPOTTISWOOD: That is correct. However, in the award, my recollection is that it says 5.30 to 7.30 with an hour either way by agreement.

PN101

THE COMMISSIONER: Yes, but, you see, what I am driving at is what do you need to facilitate?

PN102

MR SPOTTISWOOD: So, Commissioner, are you saying that I really could strike these out of the facilitation clauses basically?

[12.52pm]

PN103

THE COMMISSIONER: Well, I am not really saying anything. I am trying to make sense of why the facilitation provisions are there and what purpose they serve. Just bear with me for a minute. There is no hurry. I said at the outset we are just looking at the facilitative provisions because on their face, what they say is you can change all of these things and they don't say how. It is not the nature of a facilitative provision in an award. What it says is how certain terms of the award are to apply may be varied by agreement.

PN104

It doesn't say the terms are not to apply. It says how they are to apply may be varied by agreement and it describes the nature of the agreement and in many cases it also describes the limitations on the variations in how the award may apply. What we have here is an agreement that says all of the terms of the award that are listed here can be changed and I want to ask you, well, what sort of changes could be made? You say, well, none, we don't want to work on Sunday, so 22.1.2 is irrelevant, even though it is listed there as something that might change and then I say, well, what about the spread of hours and you say, no, we are happy with the spread of hours being between six and eight, but the agreement allows that these things may be changed, but it doesn't describe how they may be changed. I presume and I think I am right that if this agreement was certified, it would permit that the ordinary hours of work could be worked at any time, provided it was agreed.

PN105

MR SPOTTISWOOD: Commissioner, that is certainly not the intent. What I think it boils down to is if the company, for example, has normal starting hours for its drivers of, say, eight o'clock in the morning until four, that is their sort of normal roster that they have for all employees and I am not sure if that is correct or not at the moment, but, for example, if they have eight until four, their, quote, normal roster, the facilitation clause is meant to allow that to change from, quote, the normal roster to, say, seven o'clock start or whatever.

PN106

THE COMMISSIONER: Well, it is superfluous because what the agreement says on its current terms is that people can start as early as six and finish as late as eight. It doesn't need any facilitation to achieve those things. If you want to finish at nine pm or you want to start at five am, then you would need some facilitation and that is what I assume is meant by this.

PN107

MR SPOTTISWOOD: No, we certainly didn't mean to go outside of - - -

PN108

THE COMMISSIONER: Well, that is the effect of it and that is why I won't certify it.

PN109

MR SPOTTISWOOD: Okay, we certainly didn't mean to go outside of the award provisions.

PN110

THE COMMISSIONER: My reading of it at the present time is that hours could start at any time provided there was agreement. Ordinary hours could start at any time on the clock. It could start at midnight in ordinary hours under the facilitation provisions. That is the effect of the terms, the way it is drafted. Now, if you are happy with these provisions here, ordinary hours are 38, Monday to Saturday, work between six and eight and once again, clause 21.1.4 only makes matters worse in terms of - it is a circularity which provides no surety or certainty as to what the hours of work are going to be, then you don't need facilitation.

PN111

What I will do is let you think about this facilitation provision and I will have the balance of the agreement analysed to determine whether or not it passes the no disadvantage test, leaving the facilitation provisions aside, so I am saying to you now I will not certify this agreement with the facilitation provisions in their current terms. There may be room for some facilitation provisions in a certified agreement. I have got an open mind on that, but not for these, because they travel too far. Reading them carefully and strictly, the effect of them is to open up all of those areas of the agreement that are listed there to new agreements which may not pass the no disadvantage test and I won't certify an agreement on that basis.

PN112

MR SPOTTISWOOD: Commissioner, if they were put strictly in terms of the award, the way the award reads, would that satisfy the Commission?

PN113

THE COMMISSIONER: Well, it would at least give me an understanding of how the no disadvantage test is to be calculated including the facilitative provisions. Have you done any no disadvantage test calculations on this agreement excluding the facilitative provisions?

PN114

MR SPOTTISWOOD: Yes.

PN115

THE COMMISSIONER: You have? All right. Well, why don't I do that and you think about what you want to do about the facilitative provisions and I will list this matter again for another day now?

PN116

MR SPOTTISWOOD: Okay. Thank you. Commissioner, I would ask one question. If we go down this path and that is fine, does this mean we have to go through the whole process of the voting, etcetera, again or not?

PN117

THE COMMISSIONER: The facilitative provisions?

PN118

MR SPOTTISWOOD: Yes, because it will be a change. If the employer agrees and we put - - -

PN119

THE COMMISSIONER: Well, there may be a solution to that. The solution may be for you to give an undertaking that you won't use the facilitative provisions.

PN120

MR SPOTTISWOOD: Well, I am quite happy to give an undertaking now that we won't use the facilitative provisions - - -

PN121

THE COMMISSIONER: At all? Not a qualified undertaking, otherwise you have got to redraft them. They are too broad, an undertaking that you won't use them except, you know, in a good way, sort of thing, is not suitable to me.

PN122

MR SPOTTISWOOD: So even if it was said outside - sorry, even if the undertaking was that they would not be used outside of the terms of the award, is that not sufficient? That is what we would be saying. That was the intent. When we in fact had the meetings with the employees on this matter, we went through it in great detail.

PN123

THE COMMISSIONER: Yes, well, I think you might be confusing a couple of things, Mr Spottiswood. We have dealt with one narrow part of this agreement which is a fundamental problem in its current terms. The agreement has got to pass the no disadvantage test. If you want me to test the agreement, presuming that there will be some facilitation as well, then that is a different numerical, quantitative calculation. I am saying to you, why don't you look hard at the facilitative provisions and ask yourself what exactly it is that you want to do and instead of having a general facilitation provision why don't you put what facilitation you have in mind into the relevant clause itself, so that, for instance, if what you want to do is to change the spread of hours by agreement, then you would put it in there and if you wanted to have, as you have done with the time off in lieu of overtime, you put that there.

PN124

But I have asked you a question about that which is to do with whether or not employees are going to lose point 5 of an hour if they take time off in lieu when the overtime rate is double time. You can solve that problem pretty simply, but what I am trying to do is work out a way to expedite the processing of the agreement and I think that if you look at little bit more specifically at what you are trying to achieve, rather than generally, then the process could go faster. If you look at what in those listed clauses the purpose of the agreement is and try and reflect it in the terms of the agreement, rather than in this sort of slightly - well, highly confusing in my view facilitative provisions.

PN125

MR SPOTTISWOOD: Yes, I understand, Commissioner.

PN126

THE COMMISSIONER: So that you would go to time off in lieu of overtime and if you didn't want to have a time off in lieu where people were working at double time, having time off in lieu at time and a half, you would just amend the clause so that it says employees may take time off in lieu of overtime and the amount of time off in lieu shall be equivalent to the penalty rate applicable to the work performed. Now, that gives you the facilitative effect of having time off in lieu of overtime.

PN127

MR SPOTTISWOOD: Within the clause itself.

PN128

THE COMMISSIONER: Yes, within the clause itself, as it is now and it overcomes the potential objection that there is a less advantageous provision in the agreement than would be the case in the award. I don't know. I haven't looked at whether the award - - -

PN129

MR SPOTTISWOOD: I am not sure either, Commissioner.

PN130

THE COMMISSIONER: It would be certainly legitimate and open to you to say, well, if the award prescribes that when overtime is taken as time off in lieu, it is all time and a half, well, then that is fine, you pass the no disadvantage test in relation to that specific provision, but if it is different, then you might not, so we are just at the threshold of this matter. We are not in the substance of the no disadvantage test. We are actually just trying to pose the right question. How do you analyse the agreement for the purposes of the no disadvantage test, bearing in mind that it has got this clause 8 here? How do you actually satisfy yourself, given the way in which clause 8 is expressed at the present time?

PN131

It seems that a lot of undefined agreements could be reached and it is impossible to compare what the terms of those agreements might yield in terms of conditions of employment and wages with the award, so how can you be satisfied that that passes the no disadvantage test? It is a purely hypothetical proposition, it is speculative, so if you look through those and I don't know what you want to do in relation to annual leave at 27.4, for instance. Let us have a look at that.

PN132

MR SPOTTISWOOD: That was a bit confusing, Commissioner. It is really to do with the fact that payment for annual leave will only be made - it is in terms of the award, too.

PN133

THE COMMISSIONER: Well, it is about annual leave being taken, 27.4.

PN134

MR SPOTTISWOOD: Yes, it is a bit ambiguous. I think it really was meant to say that you cannot have payment in lieu of annual leave unless you terminate your employment, basically.

PN135

THE COMMISSIONER: Well, why not just put that in?

PN136

MR SPOTTISWOOD: Yes, which is 38.4.4 of the award and 38.5 I think.

PN137

THE COMMISSIONER: You see, what I am suggesting is I don't think these facilitative provisions expressed in a general way are serving your interests very well. If you have clearly defined and specific objectives which have been discussed with the employees and agreed, why not reflect them as terms of the agreement, rather than as potential terms of the agreement?

PN138

MR SPOTTISWOOD: Commissioner, if we were to virtually take out - sort of, heed your suggestion, to take out the facilitative clause in total - - -

PN139

THE COMMISSIONER: And distribute the facilitative aspects into the relevant clauses, that would make it much easier for me to then do the analysis on whether or not the agreement passes the no disadvantage test.

PN140

MR SPOTTISWOOD: Understood, Commissioner. If we do that and in effect amend the agreement, would that mean we would have to go back to square one?

PN141

THE COMMISSIONER: Well, I think you would have to have another vote. You don't have to do anything else.

PN142

MR SPOTTISWOOD: So we would have to have another vote, anyway?

PN143

THE COMMISSIONER: Yes, and you would just explain it to the employees. If you gave me this series of undertakings that you were talking about there earlier, given the nature of these provisions, the generality of them, the idea that there might be these agreements which vary the terms of the certified agreement or the proposed certified agreement in the future and I don't know what they are and you give me an undertaking that, well, it will all be all right because nobody will suffer a disadvantage against the award. Well, I wouldn't do that without issuing some orders as to audits of this agreement during its life, because much of the reason for me reaching a conclusion on those undertakings that this agreement would pass the no disadvantage test and the employees would not be disadvantaged would be dependent upon what sort of agreements were ultimately entered into under these facilitative provisions and it would depend also on what work the employees did and some sort of conclusion would have to be reached as to whether or not these hypothetical future agreements pass the no disadvantage test.

PN144

The only way that could be - the only way the Commission could satisfy itself about that would be if there were some audits of the way in which the agreement applied to the employees during the life of the certified agreement. Now, you don't want that. That is an unnecessary cost to be imposed on the employer and create confusion and doubt in the minds of people as to whether the agreement is operating in a fair and proper manner as envisaged by the legislation. So it is better to get it right now, rather than rely on very generalised provisions about facilitation, supported by very generalised undertakings, because I can't just take those at face value, otherwise people could come down here every day of the week and say, well, here is an agreement and here is a clause in it that says we can change it all during the two years that it runs for and it will all be okay because when we change it, we won't change it so that anybody is worse off than they would be under the award.

PN145

Now, we can't certify agreements on that basis. That is all pie in the sky stuff. If we were to accept those sorts of undertakings, we would have to impose provisions for auditing the agreements to make sure they complied with the undertakings, so it is better that the agreement be quite specific. The employees know what the terms of the agreement are, they are clear, they can read them. There is no, well, we can make another agreement type of situation that is deferred and they can enjoy the benefits of the agreement, the employer can apply the terms of the agreement efficiently and everybody can know that they have been assessed by the Commission as passing the no disadvantage test and it is all over for the life of the agreement. I think that is where we want to get to, unless there is something that can't reasonably and practicably be done in terms of the conduct of the business of the employer by that means.

PN146

MR SPOTTISWOOD: No, as I said, I don't think there is, Commissioner. There was an intent honestly to do it right.

PN147

THE COMMISSIONER: No, I am not questioning anybody's motives.

PN148

MR SPOTTISWOOD: I understand.

PN149

THE COMMISSIONER: I am talking about this is a document that is going to regulate everybody's terms and conditions of employment for its life and it ought to be right from the outset, don't you think?

PN150

MR SPOTTISWOOD: Yes, Commissioner.

PN151

THE COMMISSIONER: And if you have got sort of a no disadvantage test to pass, then these facilitative provisions are problematic. I think you know what you want to do, because in many cases, the things that the facilitative provisions refer to express the objective, so what is the point of the facilitative provision? You don't want to work on Sundays. You do want to work on Saturdays. The award says Monday to Friday, you say. The agreement already permits ordinary hours to be worked on Saturday without agreement. If you are going to work on any other day of the week, it is only Sunday, so to that extent, the facilitative provision is irrelevant and I suspect that similar situations apply in relation to other aspects of the clause.

PN152

So what I am saying to you is I think that the interests of the employer and the employees could be both served by removing this rather vague and confusing facilitation provision and substituting what was agreed about hours of work and meal breaks and those sorts of things and putting that into the terms of the agreement. You see, clause 24.1.1 for example allows that there can be agreement about when meal breaks are taken.

PN153

MR SPOTTISWOOD: That is correct.

PN154

THE COMMISSIONER: What do you need a facilitation provision for? That is a term of the agreement.

PN155

MR SPOTTISWOOD: Well, the only thing that we had there was and I understand it is rare, anyway, there may be operational needs where they may have to work beyond five hours, which is the norm in the award.

PN156

THE COMMISSIONER: Well, it says you can in clause 24. The facilitation provision adds nothing to that, except to say that you can change it. In fact, I question whether or not the facilitative provisions have any effect at all on meal breaks, given what is stated there, although perhaps you could change the duration of the meal break. Is that what is meant?

PN157

MR SPOTTISWOOD: No, the meal break would still be the same as the award, not less than 30 minutes.

PN158

THE COMMISSIONER: Well, you see, I don't think it does any work for you.

PN159

MR SPOTTISWOOD: Okay, I understand, Commissioner.

PN160

THE COMMISSIONER: It doesn't do any work for you. You can take that out, you can take the other parts out. I think when you look through it all, you will find that it is superfluous because you have actually incorporated the facilitation that you seek as a term of the agreement in clause 24, but what it does do in very general terms is to open up other possibilities.

PN161

MR SPOTTISWOOD: Looking at that one in particular, Commissioner, would that clause, 24.1, the meal breaks, would that currently pass the no disadvantage test in that case as it stands at the moment?

PN162

THE COMMISSIONER: Well, I have got a question mark about that, not much from - - -

PN163

MR SPOTTISWOOD: Because in the award at 36.1.1, it virtually says the same thing. The wording may be a little bit different, but I think the intent - - -

PN164

THE COMMISSIONER: Well, actually, my question mark didn't actually derive from the fact that somebody might work more than five ours without a meal. If they work for five and a half, how significant is that in terms of the no disadvantage test? You would have to take other advantages in the agreement that may not be provided for by the award into account. My question mark actually was about something else. My thinking is that - and I am vaguely aware of some new regulations about the taking of meal breaks that have nothing to do with the industrial system, that they actually emerge from the road transport regulatory authorities.

PN165

MR SPOTTISWOOD: I am not aware of that, Commissioner.

PN166

THE COMMISSIONER: Yes, well, you see, if you look - - -

PN167

MR SPOTTISWOOD: It may be, but I am not aware of it.

PN168

THE COMMISSIONER: If you look at the no disadvantage test, you will find that it is not just the award, it is the relevant legislation as well. Now, my understanding is that there has been some recent changes to that legislation about truck drivers in particular taking meal breaks and my understanding is that the change is now that it is now a legal responsibility upon an employer, not under a certified agreement or an award, to allow the employees to take the meal breaks prescribed by those industrial instruments, but, rather, to ensure and enforce that meal breaks are taken for public safety reasons, to avoid fatigue, so there has been a shift in the regulatory emphasis.

PN169

In the past, this was a term and condition of employment that employees enjoyed under awards or agreements. It was their entitlement to have this time for a meal break and it was the obligation of the employer under the agreement to let them do that. I think the changes recently taken place, I don't have the reference at this moment - - -

PN170

MR SPOTTISWOOD: Okay, I was just going to ask that question.

PN171

THE COMMISSIONER: Well, the employer should look it up, anyway. It is a matter of importance to their business.

PN172

MR ENGI: It is a WorkCover regulation, I believe.

PN173

THE COMMISSIONER: Well, it may be WorkCover, but I think it is even more widespread than that now. I think the road transport regulations are getting into the act as well that the employer has now got the legal responsibility to enforce the meal breaks.

PN174

MR SPOTTISWOOD: Okay, thank you for that, Commissioner.

PN175

THE COMMISSIONER: Now, I may be right or wrong about that, so that is why I say I have got a question mark. I don't know what the answer is there. If somebody works 10 minutes past five hours, well, really, I wouldn't think it is particularly important, but if they work for another three hours, I think it would be very important, frankly.

PN176

MR SPOTTISWOOD: Yes, I don't the intention is to work for three hours.

PN177

THE COMMISSIONER: Particularly if the award provided that if you worked on, then you were to be paid a penalty rate or something and these employees weren't paid that penalty rate. That would be significant. What I have got to say, though, is I haven't done the no disadvantage test on the individual terms of the agreement and made an overall comparison with the award at this stage and the reason I haven't is because the facilitation provisions are a road block, because they are so broad in their terms that anything could happen in relation to those clauses and how do I model the no disadvantage test and that indicates to me that you can't be satisfied that the agreement passes the no disadvantage test if you can't accurately model it and that is what the Act says I have to do.

PN178

I have to be satisfied that it passes the no disadvantage test. To be satisfied doesn't mean I have got a hunch. It means I have done an analysis of the relevant terms of the agreement and I have been able to reach an informed conclusion about the effect of those terms on the employment of the employees and to reach a conclusion that it doesn't disadvantage them, so if you look at that facilitation provision and you reach the conclusion that the work that it is trying to do is already done in the individual terms of the agreement or can be done in those terms, let me know. I will try and get this evaluated as quickly as possible and I will list this matter for another day.

PN179

MR SPOTTISWOOD: Thank you, Commissioner. Just to clarify that, I am quite happy to go along with what you are saying with regard to facilitation of clauses and do what you suggest. To expedite this matter and I think you have just addressed it, would you look at the balance of the agreement and let me know whether it actually is satisfactory before we go further?

PN180

THE COMMISSIONER: Yes, I will do that.

PN181

MR SPOTTISWOOD: If we can do that, I think it sort of helps both parties, that we are not - - -

PN182

THE COMMISSIONER: Well, there was no point in me doing that because that will incur costs and time and effort. If you were going to insist on your case that the agreement be certified with the facilitation provisions intact, exactly as they are, what my intention would have been was to produce a decision rejecting the certification of the agreement and give you the opportunity to appeal that decision if you wish and then you would know for sure whether or not the facilitation provision was fit for certification, but if you are giving consideration to the solution that I have suggested, that is fine. I will now take steps immediately to have the agreement evaluated for the purposes of the no disadvantage test as if the facilitative provisions in clause 8 were not there.

PN183

MR SPOTTISWOOD: In terms of that, so we would expect to hear from the Commission - - -

PN184

THE COMMISSIONER: I can't tell you when.

PN185

MR SPOTTISWOOD: No, no, I am not getting a time particularly, but before we actually - - -

PN186

THE COMMISSIONER: You will get a date fairly soon. When that date will be, I can't tell you.

PN187

MR SPOTTISWOOD: For us to go through the process with the employees means we have got to go - - -

PN188

THE COMMISSIONER: You will have to have another meeting, I would think.

PN189

MR SPOTTISWOOD: Yes, understood.

PN190

THE COMMISSIONER: Or there is a shortcut. If you do an analysis and you find that the facilitation that you are looking for is actually embedded in the clauses already and you gave an undertaking that you would not use the provisions of clause 8, then what would avoid the need for another vote.

PN191

MR SPOTTISWOOD: Okay, understood. Thank you, Commissioner.

PN192

THE COMMISSIONER: Thank you. Will you please write to me as soon as practicable about this subject?

PN193

MR SPOTTISWOOD: Yes, I certainly will. I would have something within a couple of days.

PN194

THE COMMISSIONER: And my office - when my office replies to you, it will tell you what is happening with the evaluation of the agreement for the purpose of the no disadvantage test.

PN195

MR SPOTTISWOOD: Thank you, Commissioner.

PN196

THE COMMISSIONER: Thank you. I adjourn these proceedings to a time and date to be fixed.

ADJOURNED ACCORDINGLY [1.17pm]