G0439CR Dec 905/99 S Print R7898

AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

Workplace Relations Act 1996

s.113 application to vary

s.107 reference to full bench

Printing Industries Association of Australia

(C No. 20241 of 1997)

Workplace Relations and Other Legislation Amendment Act 1996

Item 51 Part 2 Schedule 5 review of award

(C No. 00561 of 1998)

GRAPHIC ARTS - GENERAL - INTERIM AWARD 1995

(ODN C No. 22956 of 1995)

[Print M7985 [G0439]]

Various employees

Graphic arts industry

   

SENIOR DEPUTY PRESIDENT MARSH

SYDNEY, 5 AUGUST 1999

Allowable award matters

DECISION

[1] The review of the Graphic Arts - General - Interim Award 1995 (the award) has had a very protracted history, commencing with an application under s.113 of the Workplace Relations Act 1996 (the Act) to vary under the Item 49 of the Workplace Relations and Other Legislation Amendment Act 1996 (the WROLA Act) arrangements and culminating in an arbitrated hearing under Item 51 during April and May 1999. Witness evidence was taken on 15 and 16 March and 8 April 1999. Supplementary written submissions marked as Exhibits M29, M30, AIG6, P27, P28 and P29 were received on 30 June 1999. The Printing Industries Association of Australia (PIA) applied to withdraw its s.113 application in transcript on 20 May 1999 (Tpt 538). I do not intend to rule on the s.113 application at this stage. I will not recite the history of events leading to this decision. However, Attachment A to this decision reproduces an employer exhibit which sets out the salient dates [Exhibit P10].

[2] I am satisfied that the award is subject to Item 51(1) which states:

[3] Item 50(1) states:

[4] I have conducted the review pursuant to the statutory requirements of the Act and the WROLA Act. The relevant provisions of s.89A and Item 51 which are referred to throughout the decision are found at Attachment B.

[5] PIA and the Australian Industry Group (AI Group) (the employers) led evidence from six witnesses, all of whom were cross-examined by the Automotive, Food, Metals, Engineering, Printing and Kindred Industries union (the union). These were:

· Geoffrey Mark Boshell, General Manager of Anzpac.

· Michael James Dennis, Chief Executive of Flexpak.

· Kenneth Amor Hutton, Managing Director of Alken Press.

· Alan Philip Patrick, Managing Director of Patricks' Badges.

· David John Hollister, Managing Director of Omega Press Pty Ltd.

· Noel Alexander Crichton, Consultant to the Printing Industries Association of Australia.

[6] The union filed 17 witness statements. Of these five were required for cross-examination by the employers. The remaining evidence was uncontested. The witnesses cross-examined were:

· Mr Frank Rew, Organiser in the Sydney metropolitan area, Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union.

· Ms Amanda Perkins, NSW State Organiser - Printing Division, Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union.

· Ms Lorraine Cassin, Organiser Melbourne eastern suburbs, Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union.

· Mr Terry Ellias Williams, Father of the Chapel - Visy Paper Number 4 Mill, Victoria, Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union.

· Mr John Frederick Trappel, Organiser Western Australia, Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union.

[7] The uncontested witness statements were sworn by:

· Mr Alexandro Dudi, Father of the Chapel - Hannanprint Victoria, Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union.

· Mr Laszlo Loosz, Clerk of the Chapel - Leigh Mardon Pty Ltd Datacard Division, Victoria, Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union.

· Mr Geoffrey Anthony Marchiori, Father of the Chapel - Amcor Box Hill, Victoria, Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union.

· Ms Beryl Agius, Mother of the Chapel - Mailcare Systems, Victoria, Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union.

· Mr Neil Drapper, Union Representative - Amcor Cartons, Heidelberg, Victoria, Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union.

· Mr Peter Cameron, Clerk of the Chapel - Stone Containers Pty Ltd, Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union.

· Mr Raymond William West, Father of the Chapel - Visy Paper II, Reservoir, Victoria, Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union.

· Mr Stephen F Maclennan, Clerk of the Chapel - Moore Australian, Clayton, Victoria, Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union.

· Mr J Peter Laverack, Letterpress Machinist - Rolls Printing, Victoria.

· Mr Malcolm M J Richie, Father of the Chapel - William Brooks Limited, NSW, Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union.

· Ms Ena Reid, Laser Print Operator - Hermes Precisa Australia Pty Ltd, Erskineville, NSW.

· Mr Stephen Robert Walsh, Branch Secretary Tasmania, Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union.

[8] A number of provisions are agreed between the parties as being allowable pursuant to s.89A(2) and s.89A(6) of the Act and meeting the requirements of the WROLA Act. Exhibits M18 and P8 set out the basis on which I am asked to make a finding on the allowability of each of the agreed matters. I have reviewed all provisions of the draft award and, subject to comments made below on specific provisions, the clauses will be contained in the reviewed award. The agreed clauses which require more detailed examination are:

2.2. Work Organisation

3.3 Dispute Settling Training

5.1.1(a) Rate of Wage

5.2.4 and Appendix L Protective Clothing

6.7 Time Provisions (referred to me to hear and determine by a Full Bench direction dated 5 March 1999)

[9] The following is a summary of the non agreed award provisions requiring determination. For ease of reference the employer's numbering contained in exhibit P9 has been utilised:

Part 2 - Enterprise Flexibility

2.1 Enterprise Flexibility

2.3 Facilitative Provisions

Part 3 - Dispute resolution

3.2.5 of dispute resolution procedure

Part 4 - Employment relationship

4.1.3(a)(ii)

4.1.3(a)(v) Definition of Part Time Work

4.1.4(b) Casual deemed permanent

4.1.5(a) Employment for a specific period of time or specific task or tasks

4.2.1(a)

4.2.1(g) Termination of employment - continuity of service

4.2.4(d)

4.2.4(f) Time off during notice period

Part 5 - Wages and Related Matters

5.1.2(c)(iii) Supervision and safety

5.1.2(d) Juniors employed in screen printing

5.1.2(e) Juniors Employed on Small-Offset Lithographic Printing Machines

5.1.2(e)(i) Adult Supervision of Juniors on Lithographic Printing Machines

5.3 Payment of Wages

5.3.7 Pay slip details

5.4 Time and Wages Record

5.4.2 records for inspection by union representative

Part 6 - Hours of Work, Breaks, Overtime and Shiftwork

6.1 Hours of Work

6.1.1(c) Work cycles

6.1.1(d)(i) Ways in which ordinary hours are worked

6.1.1(d)(ii)

6.1.1(d)(iii)

6.1.1(e) Extending ordinary hours

6.1.1(e)(ii)

6.1.1(f)

6.1.2 Ordinary Hours other than Continuous Shift Work Employees

6.1.2(a), (b), (c), (d), 6.1.2(d)(ii) and (iii)

6.1.2(e)(i) and (ii) Extending Ordinary Hours

6.1.3 Ordinary Hours of Work - Continuous Shift Work

6.1.3(b) Ordinary Hours and Work Cycles

6.1.3(c) and (d) Days on which ordinary hours are worked

6.1.3(f) Ordinary Hours on Saturday or Sunday/Extending Ordinary Hours

6.1.4 Methods of Arranging Ordinary Hours/Implementation of Ordinary Working Hours

6.1.4(d) - (g)

6.1.4(h) Twelve Hour Shifts

6.1.5 Make Up Time

6.1.7 Change of Working Periods

6.1.7(b)(i) or 6.1.7(c)

6.1.7(b)(ii)

6.2.2 Altering Span of Hours

6.2.2(a) and (h)

6.2.4 Rate for Working Saturday Shifts

6.2.5 Rate for Working Sunday Shifts

6.2.6 Meal Break - Continuous Shift Workers

6.4.3 Minimum Periods of Pay for Overtime

6.4.7 or 6.4.8 Time Off in Lieu of Payment for Overtime

6.4.9 Limitation of Overtime

Part 7 - Leave of Absence and Annual Leave

7.1.11 How to Calculate the Leave Entitlement

7.1.11(a), (b) and (c)

7.2.4 Sick Leave

[10] In addition, the following matters are to be subject to further proceedings at a later stage and form the subject matter of a Procedural Direction issued 28 April 1999:

5.1 Wage Rates and Classification Structure

5.1.1 Rate of Wage

5.1.3 Apprentices

6.4.7(a) Thirty Six Hour Break

Appendix M Long Service Leave (to be dealt with via s.113 applications to set aside Long Service Leave awards)

[11] Before turning to the non agreed matters and the agreed matters requiring comment or determination, I intend to give consideration to a number of background issues which were relied upon to support general and specific submissions in support of provisions in contention [see Exhibit P10 and M19].

BACKGROUND ISSUES

[12] The issues to be addressed embrace:

1. The nature of the industry

2. The nature of the workplace

3. Studies on employee attitudes

4. Regulation of the industry

5. Overview of approach to review of the award

6. Conclusion on Background factors

1. The nature of the industry

[13] Both parties relied upon Industry Studies to develop an industry profile including the Epic Industry Training Plan 2000-20002, the NPITC Profile of the Printing Industry 1999 and the Paper Products and Printing Industry Overview January 1997. The union also relied on a number of surveys and questionnaires to substantiate employees' attitudes or values. The material was relied on in particular to emphasise the framework for, and nature of, the relative facilitative provisions being advocated. The employers challenged the veracity and utility of some of the union's material including coverage issues, statistical issues, survey deficiencies, and lack of information on how the material was collected. To the extent industry wide material is relied on this is of general value but of little relevance to an argument relying on the "unique" or special nature of the Graphic Arts Industry. The considerations raised by the employers have been taken into account in giving appropriate weight to the material relied upon.

[14] Key characteristics of the industry emerge from the material:

· The industry is very broad. In the employers' words it spans "all forms of products and articles used by Australian society as well as those products which are exported eg., wine exports include[sic] the printed wine bottle label" [Exhibit P8, p18].

· The industry is competitive with virtually no tariff protection. This requires rapid response to changing circumstances in local and overseas markets [Exhibit P8, p19].

· Labour productivity is expected to grow with improved technology.

· The industry is dynamic with technological and other changes impacting dramatically upon some sections of the industry eg., pre press. On demand printing is estimated to account for 25% of the industry by the year 2000 (from 10% currently) [Exhibit M19, Tag 3 P14].

[15] Summary from the report Electronic Print Shop 1995-2000 - The Printshop to Desktop Migration [BIS Strategic Decisions, USA]

2. The Nature of the workforce

Workforce statistics

[16] The industry comprises a very large number of employers who employ a small number of employees. 85.3% of employer establishments employ less than 20 employees: 2.6% of employer establishments employ 100 or more employees [Exhibit P8, p19, Exhibit M18, p3].

· Non trades area comprises a higher proportion of total employment than trades.

· Printing, publishing and recorded media employ 18% of all females in manufacturing (second to textiles 21%) [Exhibit M18, p4].

· Male screen printers, printing machinists, desktop publishing operations and printing hands on average earn considerably higher wages than females (15.3% - 32.4%) [Exhibit M18, p5].

· Poor language, literacy and numeracy skills are encountered on a regular basis [Exhibit M18, 3].

· Union membership for the manufacturing industry is 34.5%. No official union data is available for substreams of manufacturing industry [ABS 6310.0 Aug 1998].

· The demand for labour varies across the industry and between classifications, most notably between skilled and non skilled labour [see Exhibit M18, p14]. Bargaining power of employees accordingly is uneven.

3. Studies on employee attitudes

[17] A focus group study commissioned by the union, [Research and Management Consultants Pty Ltd, October 1998, Exhibit M18, p6] which included classifications under the Graphic Arts Award, found that the key influences were:

· job security

· fear of unemployment

[18] The union also relied on a range of findings including:

· A survey by Department of Employment, Workplace Relations and Small Business - Community Research was taken across industries and was "designed to uncover the personal emotions and values of workers in Australia that determined their perceptions of the workplace, the role of government in the workplace, the role of unions in the workplace, and workplace agreements." [Exhibit M19, tag7, p3]. Its results are applicable to all industries covered and are not confined to the graphic arts industry. Despite reliance upon it by the union I consider it of little relevance to an argument which relies on the special characteristics of the graphic arts industry, or which seeks to establish the views of workers in the industry under review. The union relied upon extracts from the findings to support the cautious approach which in its view should be taken towards the introduction of, or extension of, greater flexibility into the award, particularly through the avenue of facilitative clauses.

· The ACCIRT report, Work Time and Life found, inter alia:

[19] To the extent any of the findings directly relate to particular facilitative clauses before me for determination, the material has been taken into account in reaching my conclusion. However, properly constructed facilitative clauses are not generally characterised as resulting in "unregulated and fragmented working time arrangements".

4. Regulation of the industry

[20] On the material before me a pattern of regulation of employees' conditions of employment, apart from the award, can be discerned:

· Certified agreements cover some employees. No material directly related to the coverage of the graphic arts industry was provided. The employers provided data which showed 15% of all employees are covered by a federal agreement and 50% of workplaces with more than 20 employees [Exhibit P8, p64].

· Informal, unregistered agreements are in existence across the industry of which a proportion are in breach of the award and as such leave employers "open to attack" [Exhibit P8, p9].

· Some of the evidence before me supports the conclusion that employees initiate informal arrangements in working arrangements and that trust is a characteristic of informal agreements [Mr Dennis Tpt 110, Mr Holland Tpt 128, Mr Patrick Tpt 125, Mr Boshell Tpt 8 sworn statement par12, Mr Crichton sworn statement par15, Mr Rew Tpt 22, Mr Trappel Tpt 265, Mr Trappel Tpt 262].

· On the other hand some of the evidence demonstrated that many employers are unaware of their award responsibilities and employees are not aware of existing award entitlements. This puts employees in a disadvantaged bargaining position [Ms Cassin sworn statement par 4, 8, Mr Rew sworn statement par 7, Tpt 11, 12, 14-25, Mr Trappel sworn statement par 9, Mr Crichton Tpt 146, 163, 164, 174, Ms Perkins Tpt 48, 53,].

· The evidence also demonstrated that award breaches, while common, occur as employers are either ignorant of their responsibilities and rights under the award, or the award is deliberately ignored [Exhibit M18, p15].

5. Overview of approach to review of the award

· Treatment of material including evidence

[21] In the matter before me extensive evidence has been led by both parties. In general I have been assisted by the witness evidence particularly in relation to the current practice in respect of specific current award provisions which are subject to review. I have been less assisted by the witness evidence relating to the merit of the changes being sought as part of this review. A number of the witnesses indicated that they were unaware of the precise, or even general, nature of the respective claims being pressed. This is understandable given the complex nature of negotiations between the parties but minimises the value of the evidence in support of proposals for or against a particular form of change. The evidence has been carefully weighed in reaching my conclusion and is relied on as appropriate when dealing with the particular provisions of the award.

[22] The union also submitted that the Commission should not as a matter of course adopt provisions in terms identical to those provided in the Metal, Engineering and Associated Industries Award 1998 [Print Q0444] (Metals) as relied on by the employers because each award review must turn on its own circumstances including award histories and the nature of the industry. I concur with this view. This conclusion applies also to what the employers described as the union's "confusion on authorities" [Tpt 516], namely reliance on "separating out what is decided from the comments that go with a decision," [Tpt 516] in reasons of individual Commission members. Although guidance may be, and has been, sought from provisions inserted into awards which have been reviewed, including Metals, there can be no presumption of an automatic adoption of a provision purely on the basis that its existence in another award provides a precedence. Such an approach is of more value in a s.113 application. The discretion of an Item 51 Review is governed by the statute itself. I concur with the comments made by Commissioner Lewin:

[23] Principle 9 of the Award Simplification Principles makes clear the appropriateness of undertaking individual reviews.

· Role and function of certified agreements and awards

· Award compliance

· Summary of parties' approach to review

6. Conclusion on background factors

[24] All the material in this review, including the witness evidence, has been evaluated against the statutory requirements of the Act and the WROLA Act, and the Award Simplification Principles have been applied. I have also adopted the approach to reviews outlined by the Full Bench in the s.109 Reviews Decision.

[25] These comments apply with equal force to Items 51(6) and (7).

AWARD PROVISIONS REQUIRING DETERMINATION

[26] Against the background factors I turn to a consideration of the agreed provisions which require specific examination and to a determination of the non agreed issues. The exercise is in numerical order. Provisions not specifically referred to will be included in the reviewed award on the basis I have formed the view that they are allowable under s.89A(2) or s.89A(6).

Enterprise flexibility - Background to 2.2. and 2.3

[27] Before turning to the terms of the enterprise flexibility provision sought by each party I provide some background on the flexibility provided in the award by way of facilitation, particularly in respect of the Hours of work provision. This background has relevance to both the appropriateness of the terms of the enterprise flexibility provision (2.2) and the approach to facilitative provisions (2.3). As demonstrated in the section of the decision dealing with background factors, both parties placed considerable weight on the nature of flexibility provisions to be included in the reviewed award. An historical perspective is important given the finding of the Full Bench in ASD which accepted the thrust of the LTU submission, inter alia:

[28] The major differences between the parties revolve around the respective positions taken on the justification for changes to existing facilitative clauses, to meet the requirements of Item 51(6) or the insertion of new facilitative clauses pursuant to Item 51(7) of the WROLA Act.

[29] The central tenet of the union's submission is that the existing provisions provide an appropriate framework and scope of facilitation (subject to some modifications). The employers argue that the existing provisions are inappropriate in respect of framework and scope, failed to overcome award compliance, and inhibited productivity and efficiency. Thus a new structure and an extension of the clauses to be facilitated was justified.

[30] The union relied on the Full Bench arbitrated decision [Keogh DP, Marsh DP, Oldmeadow C, Graphic Arts Award 1977, Print J8236] which inserted a facilitative scheme into the award and which rejected employer claims in similar terms to those now sought by employers under Item 51. The union submitted these circumstances raised an "additional evidentiary burden which they fail to discharge" [Exhibit M18, p18]. In the union's view the employers' proposal did not have sufficient regard to existing flexibilities under the award and could result in unfairness to employees.

[31] In an interim decision arising out of the second structural efficiency adjustment [DP Keogh, DP Marsh, Oldmeadow C, Graphic Arts Award 1977, Print J3604] the Full Bench stated:

[32] In the subsequent decision [Print J8236] the Commission was faced with two competing applications covering a range of Hours of Work provisions. The Bench commented:

[33] The integration of facilitative clauses with the then clause 17(c)(iv) Award modernisation (the fore-runner of the enterprise flexibility provision) was inserted into the award to accommodate the disparate and wide ranging hours of work arrangements which were not in compliance with the award.

[34] It is the framework established by the Full Bench and the level of, and scope for, facilitation that the union submits should be retained, while the employers wish to have inserted under Item 51(7) a different framework and an extension of the clauses which are embraced within that framework to meet the changing requirements of the industries covered by the award.

2.1 Enterprise flexibility

[35] The parties are agreed on the terms of an enterprise flexibility clause consistent with the wording determined in the ASD as a test case standard [see p42], subject to the inclusion of the word "must" in the preamble and 2.1.1 compared with "shall" in ASD. However, the union seeks the inclusion of the following additional sentence:

[36] In addition to the characteristics of the industry and workforce already outlined in this decision, the union sought to justify the obligation by reference to a number of factors including:

· the history of facilitative provisions in the award, particularly the Full Bench decision referred to above which arbitrated a role for unions via the application of the current enterprise flexibility clause 2.2 to give effect to specific flexibility agreements reached at the enterprise level.

· the `unique' circumstances of the graphic arts industry which has utilised the enterprise flexibility provision on more occasions that any other industry.

· its additional wording is consistent with the intent of s.113B which permits a union to be heard:

· the Commission's preparedness to depart from the ASD model provision in particular circumstances [Prints Q2376, Q4621, Q7329, Q8609, Q2336, Q2541, Q7454, Exhibit M18, p32]

[37] Principle 9 of the Award Simplification Principles states:

[38] The union wording is a departure from the model enterprise flexibility provision determined in ASD. I have formed the view that a case has not been made out for the departure sought by the union. In particular, the statutory regime is vastly different from that applying when the Hours of Work Full Bench made its decision. Importantly, the objectives of the Act give a primary focus to agreement being reached between the employer and the employee. A distinction can be made between an obligation to notify a union before consultation commences at the workplace and the statutory provision set out in s.113B which provides for a union role in respect of an enterprise flexibility .

[39] The ASD Bench in explaining the rationale of the model clause stated:

[40] The union's overriding concerns relating to the lack of awareness of award entitlements and job insecurity undermining the genuine nature of the agreement, would, if necessary, be met by the provisions of the Act which ensure that there is "genuine agreement" before varying the award pursuant to s.113B.

[41] I have also given consideration to the union submission that the enterprise flexibility provision has been utilised more often in Graphic Arts than in other awards. However, the total of agreements reached is 12 for both this award and the Graphic Arts Award 1977 (1977 award). The following table sets out the scope of enterprise flexibility provisions which form schedules to the two awards. The last date on which an enterprise flexibility agreement was inserted into the award was in respect of an agreement to come into effect on 17 May 1996.

[42] In these circumstances I am not satisfied that special or unique circumstances exist to justify a departure from the model test case provision. The reviewed award will adopt the wording of the model enterprise flexibility clause.

2.2 Work Organisation

[43] 2.2.1(a) and (b) are agreed matters and consistent with ASD [p12] and Metals [p21]. They will be included in the reviewed award.

[44] The union seeks the following additional paragraph to 2.2.1(b):

[45] I do not agree with the union that this clause is a type of employment as provided for under the Act. It is a particular direction arising out of 2.2.1(b) which is a s.89A(6) matter incidental and necessary for the effective operation of a s.89A(2)(a) matter namely the award classification structure. The detail contained in the additional sentence is not necessary for the effective operation of an allowable matter since the agreed paragraph 2.2.1(b) provides a safe and healthy working environment. It will not be included in the reviewed award.

2.2.1(c) Mixed functions

[46] This provision is consented to by the parties. It is allowable [ASD p20] and will be included in the reviewed award.

2.2.2 Movement within a plant or section

[47] This provision is consented to by the parties. It is an unnecessary provision. It is implicit in 2.2.1(a) and will be removed for the reasons given in respect of the union's proposed second paragraph in 2.2.1(b). It is not necessary for the effective operation of the classification structure.

2.2.3 Machine set up and wash up

2.2.4 Tradesperson's duties

[48] These provisions are consented to by the parties. The reasoning given in respect of the union's addition to 2.2.1(b) and 2.2.2 applies with equal force to this provision which will not be included in the reviewed award.

2.2.5 Change of shifts

[49] This provision is consented to by the parties. This is a s.89A(6) matter. In my view it is incidental and necessary for the effective operation of an allowable matter namely hours of work [s.89A(2)(b)]. It meets the criteria of Item 51(6)(c) and will be retained in the reviewed award.

2.2.6 Starting times

[50] The reasoning in 2.2.5 is adopted in respect of this provision which will be included in the reviewed award.

2.2.7 Effect of training programs

[51] This is a consent provision of the parties. This provision is not incidental to an allowable matter and necessary for its effective operation. The intent is covered by 2.2.1(a) and (b). It is not allowable and will not be included the reviewed award.

2.3 Facilitative provisions

[52] The employers' facilitative provision represents a departure from the framework established by the Full Bench in the Hours of Work Case [Print J8236]. It provides for a 3 level model with safeguards increasing at each level in accordance with the nature of the clause facilitated at that level.

[53] The union essentially seeks a retention of the current provisions (slightly modified) which also provides for varying protections or safeguards. The highest level of safeguards invokes 2.1 Enterprise flexibility provision, ie., in respect of specific provisions the facilitative clause must be accessed via an enterprise flexibility provision which forms a schedule to the award. The union supports the `index approach' to facilitation whereby the nature of the facilitation attaches to each clause which is subject to facilitation.

[54] The parties provided extensive submissions on the nature of the industry and a summary of this material has been outlined earlier in this decision. The evidence of the witnesses largely went to the appropriateness of facilitative clauses including existing flexibility, inhibition on efficiency, award breaches and unfairness to employees (including for example, coercion, insecurity, poor level of information and bargaining power). All the relevant material has been considered in reaching my decision.

[55] In summary the major factors relevant to my decision include:

· The background to the introduction of the regime of facilitative clauses determined by the Full Bench in 1991 [Print J8236] when introducing the 38 Hour Week into the award.

· The use made of existing facilitative clauses in the ensuing period, including the limited usage of the enterprise flexibility provision. Other provisions have been widely accessed.

· The changes to the statutory requirements with the focus of the Act on recognising various types of agreements (whether registered to not registered), and on emphasising relations between the employer and the employee at the enterprise or workplace level.

· The scope and changing nature of the industry covered by the award and the workplace profile including changing technologies and disparate bargaining power of employees.

· The failure of the current award flexibilities to address award breaches and non compliance and the role of the safety net to protect employees who are unable to reach an enterprise agreement.

[56] I will determine first the framework of facilitative clauses and second deal with each specific clause to determine whether or not it should be facilitated and if so what safeguards, if any, should attach to it. The respective proposals for 2.3 Facilitative clauses are set out as Attachment C to this decision.

[57] The facilitative scheme favoured by the union is an integrated one, including the clear role given to 2.1 Enterprise flexibility provisions in 6.1.1(e)(ii), 6.1.1(f), 6.1.2(d), 6.1.2(e)(ii), 6.1.3(c)(ii), 6.1.3(f)(ii) which are all subject to 2.1. As such they are not facilitative provisions, as defined by the Commission in ASD [p36] since they require Commission scrutiny before becoming an award schedule. Few witnesses had heard of or understood the existing provision, others knew of its existence but declined to use it on the basis the procedure was overly bureaucratic. As demonstrated in the table produced earlier in this decision the mechanism of accessing flexibility via the enterprise flexibility provision has not been successful particularly given its rationale at the time the scheme was introduced. In short the expectations of the Hours of Work Full Bench have not been met.

[58] The union placed considerable weight on the Multihire Full Bench decision [Ross VP, Drake DP, Wilks C, The Hospitality - Accommodation, Hotels, Resorts and Gaming - Award 1995, Print P5446] which recommended the adoption of an enterprise flexibility provision as an option to introduce "multi hiring" into the hospitality industry. I make no comment on this decision other than to repeat that that option has been available to the parties for the past nine years with extremely limited success. In remains an award provision.

[59] However, I have decided that a case has been made out for a change in the scheme of facilitation which in part seeks to redress award non compliance by providing accessible flexibility within the framework of the award rather than continuing a scheme which, in part, invokes the enterprise flexibility provision.

[60] However, I also have difficulty with the complexity of the employers' proposal and with some of its key characteristics. I am concerned for example, about the level of safeguards attaching to some of the provisions to be facilitated. Importantly, I am concerned about the interrelationships between majority and individual facilitation which implies that individual facilitation is available on every occasion despite majority agreement being reached.

[61] The adoption of this blanket provision could result in majority agreement being undermined by individual agreements especially in circumstances where the employees are faced with little bargaining power or job insecurity. A number of awards provide for facilitative clauses that ensure this outcome does not occur [see for example Metals Print Q0444, Textiles Print R1336]. I also reject the employers' view that it is unnecessary to include in the clause a definition of a facilitative clause. The evidence before me and the history of the poor understanding of award provisions tells in favour of adopting a definition as part of the provision in the reviewed award.

[62] I have decided to follow more closely than do either of the proposals before me the guidance given by the Full Bench in ASD to reconcile the competing considerations raised in the material presented to me. In applying that guidance I have also assessed the facilitative schemes proposed by the parties and determined a provision which reflects the factors identified as relevant to this decision.

[63] The guidance provided by ASD is as follows:

[64] ASD also stated:

[65] Without foreshadowing the clauses which would be subjected to a particular level of facilitation I am satisfied that a 3 level framework as contended for by the employers is fair when tested against the statutory requirements. This is a simpler approach than setting out the facilitative requirements in each clause. However, each facilitative clause should make reference to the level of facilitation it is subject to instead of the employers' proposal to cross reference each part of the award to 2.3 [Exhibit P24, par 5].

[66] I have also decided to adopt the novel safeguard of a "cooling off period" to apply for Level 3 facilitation. This safeguard, proposed by the employers, was opposed by the union. It provides protection and hence fairness to employees in ensuring agreement is genuine. If the provision is demonstrated to be unworkable application can be made for its removal.

[67] Turning to the terms of the facilitative clause 2.3, the provision will state:

2.3.1 This award contains facilitative provisions which allow agreement between an employer and employees on how specific award provisions are to apply at the workplace or section or sections of it.

2.3.2 The facilitative provisions are identified below. They establish both the standard award conditions and the framework within which agreement can be reached as to how the particular provisions should be applied in practice. Facilitative provisions are not to be used as a device to avoid award obligations nor should they result in unfairness to an employee or employees covered by this award.

2.3.3 Such agreements may be between:

2.3.4 Where an award permits majority agreement to be reached the particular form of flexibility agreement may be utilised by agreement between the employer and an individual employee or the employer and a majority of employees and the employer in a workplace or a section of it.

2.3.5 Levels of facilitative provisions

[68] Each award clause which can be altered at the workplace has a level of facilitation (1, 2 or 3) attached to it. Set out below are the three levels of facilitation:

2.3.6 Dispute over facilitation

2.3.7 Clauses which may be altered using the levels of facilitation

[69] The clauses to be facilitated and the appropriate level of facilitation will be determined on a clause by clause basis. Attachment D sets out a table which draws together the clauses to form the basis of 2.3.7 based on this decision.

Conclusion

[70] The above framework approach is drawn from the parties' submissions in applying the statutory requirements and the factors relevant to the determination of a scheme to traverse the graphic arts industry.

Part 3 Dispute resolution

[71] This is an agreed matter with the exception of the words "and where appropriate the affected employee(s)". This is not a mandatory provision but will operate "where appropriate". There may well be circumstances were it is appropriate that the "affected employee(s)" be involved in interviews with union officials. The words are allowable and will be included in the reviewed award.

3.3 Dispute settling training

[72] The parties have agreed to the following provision being included in the reviewed award as part of the dispute settling procedure. The AI Group, whose written submission [Exhibit AIG6] was relied upon by PIAA [Exhibit P29], argued that its consent was dependent upon "the fact that the agreed provision does not increase the entitlement to leave (and, hence, employers' costs) beyond that provided for in the existing TUTA Leave Clause" [p3].

[73] The clause agreed upon states:

[74] I will deal with the provision in two stages. First the allowability of the clause in principle and second the allowability of detailed provisions.

[75] The Full Bench in the Shop, Distributive and Allied Employees Association - Victorian Shops Interim Award 1994 and others [Giudice J, Marsh SDP, Acton DP, Hingley C, Larkin C, Print Q9399] (Leave Bench) stated:

[76] The s.109 Bench found that a provision which allowed for training for the enhancement of the role of the shop steward in the dispute settling procedure was distinguishable from a provision which provided for the rights of shop stewards. In reviewing provisions of the Holden Limited Consolidated Award 1998 [C No. 90283 of 1998] the Bench considered the following clause:

"Shop steward education

[77] The Full Bench found:

[78] The union provided a number of sworn statements attesting to the constructive role of the training of shop stewards covered by the award. Statements were received from the following individuals:

· John Parkin, National Education Coordinator of the AMWU

· Kevin Moore, AMWU Father of the Chapel, Visyboard Coolaroo, Victoria

· Brad Crossingham, AMWU Deputy Father of the Chapel, Polarcup Windsor, NSW

· Clinton Lewin, AMWU Father of the Chapel, Polarcup Windsor, NSW

[79] In its written submission the union outlined the nature of the evidence:

[80] I found the witness statements of value in forming a view as to whether or not a clause providing shop stewards training to enhance their dispute settling role is incidental to and necessary for the effective operation of the dispute settling procedure [see for example sworn statements of Mr Moore pars 6, 9, 10, 11 Mr Crossingham pars 6, 7, 8, Mr Lewin pars 6, 7, 8, Mr Parkin pars 23 & 24, 25 &26, 27].

[81] I am satisfied that a provision for dispute settling leave in the circumstances of this award falls within the parametres of s.89A(6) of the Act. 3.3.1 makes it clear that the only form of leave covered by the clause is to attend courses aimed at providing for union delegates or elected representatives training in enhancement of the operation of the dispute settling procedure.

[82] Having established that the provision is allowable in principle, I turn to the second part of this decision on the dispute settling provision, namely, the terms of the subclauses.

[83] I am satisfied that it is appropriate, having regard to the requirements of Item 51(6), to determine a maximum period of leave per year and the purpose of such leave. This sub clause is allowable pursuant to s.89A(6).

[84] I am also satisfied that it is appropriate to limit the number of union delegates or shop stewards who can take leave. However, the exclusion of workplaces with less than 10 employees flies in the face of the rationale justifying the provision as incidental and necessary for the effective operation of the dispute settling procedure. The clause is not trade union training leave but a provision which is found under s.89A(6) to be an integrated part of the dispute settling procedure having regard to the industry circumstances as presented in the material before me. It makes little sense to exclude workplaces on the basis of number of employees in the absence of convincing argument that such an exclusion may be made due to the different role of shop stewards in performing their role in dispute settlement. Moreover, the provision is limited to shop stewards and to attend specified courses: its scope is narrower than existing 7.7 Trade Union Training Leave. The employers' concerns over the potential cost impact and the effect of operational requirements particularly in small businesses (where, however, there is less likelihood that a shop steward would be elected at the workplace) should be addressed through the limits imposed on attendance at appropriate courses and the number of days leave available [3.3.1 and 3.3.2], rather than upon an arbitrary exemption based on the number of employees at a particular establishment.

[85] I note that 3.3.3, 3.3.4, 3.3.5 and 3.3.10 provide additional protections for employers which relate to cost and operational requirements. These clauses will be included in the reviewed award, together with a reformatted 3.3.1 and 3.3.2 to reflect employers with less than 10 employees, and will provide an appropriate basis for the award provision to apply in a manner which does not impact unduly on employers' requirements. I am satisfied the provisions are incidental to and necessary for the effective operation of the dispute settling procedure [3.3]. The parties are to confer on the terms of 3.3.1 and 3.3.2 in the context of this decision and report at the settlement of the order. If necessary I will hear argument and determine what I consider to be fair provisions.

[86] 3.3.6 is important to establish that the available courses must be accredited. However, I adopt the reasoning of Commissioner Larkin in Pharmaceutical General: CSL Award 1998 [Print R6068] regarding TUTA as an identified accredited training provider:

[87] The reference to TUTA will be deleted.

[88] 3.3.7, 3.3.8 and 3.3.9 are incidental and necessary to the effective operation of the provision which forms part of the dispute settling provisions and/or wages rates [s.89A(2)(l)], and will form part of the reviewed award.

Part 4 Employment relationship

4.1.2 Part time

[89] The existing provision requires substantive updating and removal of non allowable provisions. The parties are agreed on a reformatted clause with the exception of the appropriate minimum number of consecutive hours which a part time employee will work per day.

[90] The union seeks:

[91] The employers seek the following:

[92] Each party seeks symmetry with their proposed casual provision [4.1.4(c)]. Currently, subject to qualifications permitting a four hour minimum in specified circumstances, casuals must work a minimum of six consecutive hours.

[93] The evidence on the merits of the respective provisions was not entirely consistent. Some union witnesses testified that part time employees wanted more not less hours [see for example Ms Perkins Tpt 77, Ms Cassin Tpt 201, Mr Trappel Tpt 240/1]. On the other hand the evidence also supported flexibility in hours of work to address demands of employees with family responsibilities who would be assisted by a minimum of consecutive hours to enable them to balance domestic and work responsibilities [eg. Mr Rew Tpt 38]. Mr Crichton testified:

[94] The Hospitality Penalty Rates Full Bench decision stated that in applying the test of fairness to employees:

[95] I have decided on balance to adopt the employers' proposal. In doing so I have weighed the competing considerations and have formed the view that additional opportunities for part time work particularly for employees with family responsibilities may be created. The provision meets the criteria of Item 51(6)(b) and (c).

[96] 4.1.3(b) is an agreed position. It will be subject to Level 1 facilitation and individual agreement.

[97] Turning to the non agreed provisions governing casual employment:

[98] The union seek the retention of the existing award clause [4.1.5]:

[99] The employers seek the retention of the first sentence of the current 4.1.5:

[100] The difference between the parties is the retention in the award of the current casual deemed permanent provision. The evidence on the operation of this clause revealed that it is either honoured in the breach or casuals are worked slightly less than 38 hours each week to prevent them from being deemed permanent after two weeks. Mr Rew's evidence usefully describes the practice:

[101] Mr Patrick, Ms Perkins, Ms Cassin, Mr Williams, Mr Crichton and Mr Trappel gave evidence supporting the thrust of Mr Rew's evidence. The evidence demonstrated that the provision has inhibited the employer's ability to employ casuals in accordance with particular needs of the enterprise [see for example Mr Crichton at Tpt 145, sworn statement par 6]. Many casual receive slightly less pay each week than their full time counterparts as they are employed for less than two weeks continuous service.

[102] I have formed the view that on all the material presented a case has been made out to delete the deeming provision. At present casuals must be made permanent after two weeks regardless of operational requirements. It is demonstrated in the material that this restricts or hinders productivity [Item 51(6)(c)] or that it is a restrictive work procedure [Item 51(6)(b)]. The restrictive nature of the current clause is demonstrated by the widespread attempts made to circumvent its intent. I have given consideration to the fall back position of the union which favoured adoption of a clause similar to that inserted into other industry awards [Lewin C, Furnishing Industry - General - Victoria, South Australia and Tasmania - Consolidated Award 1996, Print Q3877, Wilks C, Plumbing Industry Awards, Print Q8609] if I formed the view in support of deleting the deeming clause. In the union's words "Such a clause could effectively be used to limit the long term, permanent and inappropriate use of casuals in the industry whilst allowing flexibility" [Exhibit M18, p38]. This submission reflects the evidence that casuals are engaged to avoid award obligations [see Mr Rew Tpt 36, Mr Trappel Tpt 239]. Given the circumstances of the industry I am satisfied that a provision similar to that adopted in Furnishing would meet a number of objectives with flexibility being afforded to employers together with fairness to employees. Moreover, whilst such a provision represents a departure from the historical position under the award of limiting employment of casuals to two weeks, it will not result in an unfettered shift in the employment of casuals. The potential for an unwarranted change in the composition of the workforce will be avoided. The casual clause will be reformatted and include a provision consistent with the terms set out below. The provision is facilitative and consistent with the definition in ASD should provide a span or framework. Since I was not addressed in any detail on the approrpriate span the parties should confer on an extended period. If necessary I will determine the matter. This reformatting is available under Item 51(8). The parties are to confer on the precise wording of the clause which shall be subject to Level 1 facilitation with agreement being reached between the employer and the individual employee.

4.1.4(b) Casual Employment

4.1.4(c) Minimum engagement of casuals

[103] I have earlier referred to the differences between the parties on an appropriate number of minimum consecutive hours for casuals.

[104] The union position is the retention of the status quo which states:

[105] The employers' position states:

"4.1.4(c) If a casual employee commences duty or is required to attend for duty and actually attends for duty for the period required by the employer, such employee must be paid the appropriate rate provided in this subclause for four hours at the least."

[106] The union submitted that the employers' proposal constituted a reduction in an existing entitlement and rejected the submission that their proposal could assist employees with family responsibilities by allowing fewer hours of work to accommodate, for example, the school day. The evidence in part demonstrated that employees want more not less hours [for example, sworn statements of Mr Didi par5, Mr Loosz par8, Mr Marchioni par6, Mr Cameron par50, Mr McLennon par6. See also Exhibit P8, Mr Hollister p130 par 12, Mr Dennis p105 par20, Mr Boshell p96 par 10-17]. The evidence also demonstrated that it may be fair to employees to provide them with a four hour minimum daily hire to suit their circumstances [Ms Cassin Tpt 201, Mr Trappel Tpt240] and that the minimum may impact on productivity [sworn statements Mr Hutton par 4, Mr Boshell par 15 and 16]. Mr Hollister testified:

[107] Mr Crichton stated:

[108] This latter evidence is distinguished from the material in ASD where the bench rejected the employers' claim to reduce the minimum period of engagement for part time employees from three hours to two hours [ASD p14].

[109] I have decided to adopt the employers' position because I am satisfied, on the material before me, that a case has been made out that productivity may be inhibited or hindered by the six hour limit provided for in the current award [Item 51(6)(c)]. I have balanced the potential for unfairness to employees who may be required to work only four hours per day, against the creation of employment opportunities for more workers because a lesser minimum is available. The adoption of a minima in no way impacts upon the longer hours which are offered in accordance with the operational requirements of the enterprise. In other words it does not create a situation of limiting the hours a casual may work. Moreover, there is logic in providing consistency between the number of cumulative hours for part time and casual employment to ensure that one type of employment does not have a preference over the other. The new provision does no more than extend the exceptions to working six hours found in the current award, which specify the circumstances where a four hour minimum may be worked.

4.1.5 Employment for a specific period of time or specific task or tasks

[110] The employers seek a new provision:

[111] The adoption of this clause is opposed by the union. Despite the brief evidence of Mr Crichton [sworn statement par 8] on this provision, I am not satisfied that a case has been made out, which convinces me that the introduction into the industry of this new type of employment is necessary to meet the criteria of Item 51(6). No other basis was relied upon by the employers in support of the insertion of a new provision. The changes to the casual provision should enable greater flexibility in meeting seasonal fluctuations. To the extent that the proposed redundancy provision refers to "employees engaged for a specific period of time or for a specified task or tasks", the words form part of the test case standard and do not provide for this type of employment in the absence of a specific award provision. The words can be deleted from the revised draft to avoid any ambiguity.

4.2 Termination of employment

[112] The employers seek a new definition of continuity of service/period of continuous service.

The union propose the following wording:

4.2.4(d) is agreed with the exception of the underlined paragraph:

7.1.11 How to calculate the leave entitlement

[113] 7.1.11(a) is agreed between the parties. 7.1.11(b) and (c) are not. In the employers' submission the existing award provision is deficient because it fails to adequately address the issue of how to calculate annual leave entitlements or the issue of continuity of service. This impacts on a number of clauses, including Annual leave, Termination of employment and Redundancy. The provision sought by the employers is similar to that adopted in a number of awards [Metals, Textile Industry Award 1996 Print R1336, The Hospitality Industry - Accommodation, Hotels, Resorts and Gaming Award 1998, Print P9138].

[114] The union seeks to retain the current provision which has the effect that annual leave accrues regardless of the length of absence. In respect of notice and redundancy the provision refers to continuity of service being calculated under an unbroken period of service. The unfairness to employees which may result from the literal application of the provision was highlighted in evidence [Mr Rew Tpt 42, Mr Trappel Tpt 247]. If an employee is terminated to overcome the accrual of the leave in circumstances when an employee is absent for a long period of time, the employers submitted, "The fact that the present clause might contribute to the termination of employees is clearly detrimental to both employees and employers and offends Item 51(6)(b) and (c)" [Exhibit P8, p54].

[115] I agree that the clause has the potential to operate as a work practice or procedure that restricts or hinders the efficient performance of work or productivity [Item 51(6)(b) and (c)]. While it is an entitlement to employees, its practical application is extremely limited, and its operation may nevertheless impact upon continuity of service for a particular employee. Unfairness is generated in the event employment is terminated to avoid the award obligation. I will adopt into the reviewed award the employers' definition.

4.2.4 Redundancy

[116] The parties do not agree on the wording for Time off during notice period. The union proposes the following clause:

4.2.3 Time off during notice period

[117] The employer position is:

4.2.4(f) Time off during Notice Period

[118] I was not addressed in any detail by either party on their respective provisions. The employers' position is the current award provision. It is allowable and will be retained in the reviewed award.

Part 5 - Wages and related matters

5.1 Wage rate and classification structure

[119] The parties have agreed to hold discussions over wage rates and a classification structure to ensure that a final classification structure is included in the award which meets the principles in the Paid Rates Review decision [Giudice J, Marsh SDP, MacBean SDP, Smith C, Larkin C, Print Q7661] Principles for the conversion of awards which do not contain properly fixed minimum rates:

[120] The wage rates have not been fully adjusted in accordance with the 1989 minimum rates adjustment process. An interim classification structure (5 levels) was inserted by Commissioner Merriman [Print J0152], but definitions have not been developed. It is envisaged the exercise will be completed by December 1999. In these circumstances clause 5.1 is not part of the review at this stage, but, will be relisted at a later date. The clause will be included in the award pending the finalisation of the review.

5.1.2 Junior wages

5.1.2(c) Supervision and safety

[121] 5.1.2(c)(i), (ii) and (iii), 5.1.2(d)(ii), 5.1.2(e)(i) as amended, provide for supervision of juniors working under particular conditions.

[122] In my view these provisions fall within the parametres of the s.109 Reviews decision. The Full Bench found the following subclause in respect to adult apprentices to be allowable in the Glass Industry - Glass Merchants and Glazing Contractors - South Australia Award 1998 [Print Q2723]

[123] The Full Bench also found that clause 4.6.3 of Kenworth Trucks Award 1998 was allowable. The clause provides:

[124] The Full Bench stated that:

[125] I adopt this rationale in respect to 5.1.2(c), (d) and (e) of the award under review. However, the heading of 5.1.2(c) is misleading. It should be replaced with a heading "Duties of juniors employed under specified conditions".

5.2.4 Protective clothing

[126] The parties agree to the terms of the proposed clause. The existing clause has been substantially reformatted to meet the requirements of the Act. I am satisfied that the wording of 5.2.4 and Appendix L [as set out in Exhibit P29, which must be read in conjunction with the reimbursement allowance provided for in 5.2.4] are consistent with ASD and the s.109 Reviews Full Bench decision. The provision is allowable pursuant to s.89A(2)(j). The provision will be inserted into the reviewed award.

5.3 Payment of wages

5.3.1(a) states:

[127] The employers propose an additional facilitative clause:

[128] The union's evidence demonstrates a preference for weekly pay and that longer pay periods may cause hardship to employees [see sworn statements of Mr Didi par7, Mr Loosz par10, Mr Marchiori par8, Mrs Agius par7.0, Mr Williams par7.0, Mr Trappel par6.0, Mr Cameron par6, Mr West p5.0, Mr Maclennan par8, Mr Ritchie par6.0, Mr Laverack par6.0].

[129] The employers led little evidence on this issue but argued that the facilitative clause may benefit both the employer (flexibility) and the employees (convenience). Given the weight of evidence in favour of the retention of weekly pay, I am not convinced that a proper case has been made out under Item 51 to facilitate the clause. In any event in the context of award simplification it is futile to include in the award a facilitative clause which appears unlikely to be utilised. The employers' proposal will not be included in the reviewed award.

5.3.7 Pay slips

[130] The union seeks retention of the existing 6.1.6 which reflects the Workplace Relations Regulations and were inserted as part of the s.150A Review. The employers seek the deletion of the clause.

[131] The content of the award provisions are consistent with the content of the current Regulations. In ASD the Full Bench found that the provision of pay slips was allowable [p18] but deleted the relevant clause because the award provisions in the Hospitality Award "are less stringent than those contained in Regulation 132B" [p18]. The retention of pay slips was also an issue of contention in the Transport Workers Awards. In a decision dealing with a Transport Workers Union application to retain pay slip detail in awards [Private Transport Industry, Print Q2930] Senior Deputy President Harrison rejected the application:

[132] I adopt the reasoning of Senior Deputy President Harrison in determining this matter. The transport industry shares some characteristics with the graphic arts industry award relied upon by the union to justify the retention of the award provision.

[133] The union led evidence which went to lack of knowledge about the contents of the Act and lack of access by organisers to the Act. The evidence of Mr Parkin [sworn statement attachment A] demonstrates that the training courses embrace information about the Act. Moreover, the evidence did not substantiate a failure by employers to meet the statutory obligations in that they did not make proper calculations of entitlements. In the event that the deletion of the clause is found to impact on this conclusion it is open to the union to make application to vary the award and argue its merits in light of those circumstances.

[134] The existing provision will be deleted from the clause.

5.4 Time and wages records

[135] The union sought the retention of existing clause 5.1.4 which reflects the terms of the current Regulations.

[136] Time and wages records have been found to be allowable, but the provision was deleted because "the Regulations require all that the award requires and more" [ASD p28]. The duplication of the Regulation into the award is unnecessary. Given the role of the Time and Wages book records under the facilitation scheme there will be an obligation on both employers and employees and the union to be fully aware of the Regulations. I adopt my reasoning in respect of 5.3 if circumstances change which justify an award variation to insert a provision. The existing provision will be deleted from the award.

Part 6 Hours of Work

[137] Before turning to the specific provisions dealing with Hours of work, I make a number of comments. I have taken into account the material already outlined in this decision on the nature of the industry. Specifically I have had regard to a range of factors, including:

· In ASD the Full Bench stated:

· A number of Hours of work provisions provide for facilitation only via the current clause 2.2 Enterprise flexibility provision (these clauses are 6.1.6, 6.1.7, 6.7.2(e), 6.7.2(f), 6.7.3(e), 6.7.3(f)). I have already provided a scheme of facilitation which departs from this mechanism.

· As a fall back position in respect of the union's submission favouring 2.2 Enterprise Flexibility to be part of the scheme of facilitation, Mr M Brown Assistant National Secretary Printing Division stated on transcript:

[138] The employers seek to include the underlined words. In my view the words add no more than what is implicit in the existing clause and as such are unobjectionable. The subclause will include the underlined words.

[139] These are new paragraphs proposed by the employers. The union opposed their adoption primarily on the basis that the facilitative clause would result in a loss of entitlement either in the form of the shift allowances or of overtime. For example, the union submitted in relation to Mr Patrick's evidence:

[140] The focus of the material was "early starts". A reason given for the requirement for an early start was to overcome an inhibition on productivity caused by the 7:00am start [see for example Mr Hollister's sworn statement par6]. The employers relied on evidence that it was in the interest of the employees to commence work earlier (for convenience) [see Mr Boshell sworn statement par7, Mr Rew Tpt 332, Mr Trappel Tpt 244, Mr Patrick sworn statement par4, 8, 9 Mr Boshell sworn statement par7]. There was no evidence produced which demonstrated the circumstances in which the morning shift penalty, payable for the whole shift, is paid to employees asked to start work 1 hour earlier than the 7:00am start for day work.

[141] Mr Patrick in his statement attested:

[142] The requirement to pay a morning shift penalty for an entire shift when an extra hour's work is required is in my view a restriction under Item 51(6)(c) because an efficient allocation of work as access to an early start is inhibited by the obligation to pay the penalty. The same effect results to a lesser extent from the overtime requirement. Productivity may be restricted or hindered. In circumstances where an employee wants to start early fairness to employees is not affected. The evidence demonstrates that early starts do occur by informal agreement:

[143] A wide cross section of awards provide for a facilitative clause under which the spread of hours may be altered by up to one hour at either end of the shift [eg., Prints Q6887, Q5897, R0614, R1336, Q0444, N2108, Q5149, Q5884, R1277].

[144] I have given careful consideration to the competing considerations before me and I repeat the conclusion I reached in Metals:

[145] In respect of 6.1.1(b) I stated:

[146] On the evidence before me in this matter I am satisfied that a case has been made out pursuant to Item 51(6)(c) to introduce a facilitative clause to vary the span of hours of day workers.

[147] I make it clear that the introduction of a facilitative clause as sought by the employers falls within the scope of facilitation decided in ASD. The level of the shift penalty and the overtime rates is not reduced - the facilitation permits an additional hour to be worked at ordinary time without incurring the penalty or overtime rate but only on an agreed basis.

[148] In respect of 6.1.1(a)(ii) - 6.1.1(a)(iii) the employers stated:

[149] I am prepared to adopt the employers proposed 6.1.1(a)(ii) and 6.1.1(a)(iii). However, to ensure that agreement is genuine, and given the nature of the provision to be facilitated, I have decided that Level 2 facilitation will apply (not Level 1 as proposed by the employers). This means that an employee may request a union respresentative (or other representative) who must be given a reasonable opportunity to participate in discussions regarding its use. In addition 6.1.1(a)(iii) which provides for individual facilitation will only be accessible via 2.3.4(a), (b) and (c). The opening words of 6.1.1(a)(iii) should be amended accordingly.

6.1.1(b)

[150] The employers support the following provision (as amended during proceedings [Exhibit P24]):

[151] This is an agreed position between the parties. It will be included in the reviewed award.

[152] The union opposes the employers' 6.1.1(b)(ii), (iii) and (iv) and support instead the retention of the current work cycle clause (6.1.3) with some refinement.:

[153] The union provision must be considered in the following context:

[154] 6.1.4 refers to Implementation of ordinary working hours and 2.2 to the Enterprise flexibility provision (discussed earlier in this decision).

[155] I have decided as follows:

[156] First, that the current provision [6.1.5] of providing for working in excess of 8 ¾ hours and up to 10 hours by facilitation has worked well. As the union submitted: "In the evidence that was before the Commission in relation to up to 10 hours was quite significant, I think. Everybody was in agreement that that provision works well" [Tpt486]. There are no grounds under Item 51 to alter the thrust of this provision.

[157] Second, in respect to shifts up to 12 hours the evidence demonstrated that these are worked for efficiency reasons but are not always implemented via appropriate instruments such as enterprise flexibility provisions or certified agreements [see for example Mr Rew Tpt40, Mr Trappel Tpt241]. In other words unregistered agreements often exist as the basis of employees agreeing to work 12 hour shifts. Such arrangements are in breach of the award provision, regardless of the level of wage paid, because the award stipulates that 12 hour shifts are subject to 2.2 Enterprise flexibility provisions and must form a schedule to the award (unless provided for in an alternative instrument including a certified agreement or an AWA).

[158] Third, on the material before me, I have decided that the current cycle for rosters of 28 days does restrict or hinder productivity [Item 51(6)(c)] and will be extended by facilitation. However, nothing put to me justifies a 12 month rostering period. I have decided that 5 months is fair (this is the current flexibility permitted under the award for rostering of continuous shift workers when RDO's are banked (clause 6.14(f)).

[159] I have decided that 6.1.1(b) and (c) will be in the following terms:

6.1.1(b)(i) Ordinary Hours

6.1.1(b)(ii) The ordinary hours of work shall not exceed 8.75 hours per day.

6.1.1(b)(iii) Despite 6.1.1(b)(ii) the ordinary hours of day work may exceed 8.75 and up to 10 hours per day by agreement between the employer and the majority of employees or by agreement between the employer and an individual employee.

6.1.1(b)(iv) An employee may work ordinary hours outside the hours of 7:00am and 6:00pm and/or in excess of ten hours and up to twelve hours. Where ordinary hours of twelve on any day are introduced the terms of agreement must also be subject to the conditions set out in 6.1.4(h).

[160] 6.1.1(b)(iii) will be subject to Level 1 facilitation and majority or individual agreement. The individual agreement will be subject to 2.3.4(a), (b) and (c). 6.1.1(b)(iv) will be subject to Level 3 facilitation and majority agreement.

6.1.1(c) Subject to 6.1.4 the ordinary hours of work are to be worked over a cycle which does not exceed 152 hours in 28 days. By agreement between the employer and the majority of employees affected a roster system may operate on the basis of a weekly average of 38 ordinary hours over a period which does not exceed 5 months.

[161] 6.1.1(c) will be subject to Level 2 facilitation and majority agreement.

6.1.1(d) Days on which ordinary hours are worked

[162] The union supports retention of the existing provision which states:

[163] The employer supports the following provision:

[164] The union position is the status quo. The ability to work ordinary hours on a Saturday or Sunday was introduced by the Full Bench in the Hours of Work case [Print J8236].

[165] The main differences between the parties are:

· the nature of facilitation for working in excess of 8¾ hour shifts and on Saturday and Sunday.

· the payment for working ordinary hours on Saturday and Sunday.

[166] Turning to the difference between the parties for working ordinary time on Saturday and Sunday it is necessary to provide background to the introduction of this provision. The parties are in dispute over the current award entitlement which forms the basis from which the criteria contained in Item 51(6) and (7) must be tested.

[167] I appreciate that in this part of my decision I am embarking on the interpretation of an award provision. It is however permissible to form an opinion as to the existing legal rights and obligations of the parties as a step in arriving at the ultimate conclusion on which is based the making of an award for determining future rights of the parties. The High Court in Re Ranger Uranium Mines Proprietary Limited and others; Ex parte Federated Miscellaneous Workers' Union of Australia [(1987) 163 CLR 656] stated:

[168] This is precisely the exercise I am undertaking. Without forming a view on the current award entitlement for working on Saturday or Sunday it is not possible to determine the future rights as sought by the employers as part of the award review. An opinion formed by me as part of the process is not binding on the parties.

[169] The report to the Full Bench (part of exhibit M24) includes the Printing and Allied Trades Employers Federation of Australia's (as PIA then was) application to vary the then Graphic Arts Award 1977 which included in clause 19 Hours of work at Part 2 - Day work (c) and Part 3 Non continuous shift (e), "ordinary hours of work performed on a Saturday shall be paid for a time and a half and on Sunday at double time". This claim was opposed by the Australian Council of Trade Unions and the Printing and Kindred Industries Union (now the AMWU).

[170] The Bench reached a general conclusion on applications seeking to vary penalty rates:

[171] The bench introduced into clause 19 Hours of work and clause 20 Shift work:

[172] Paragraph 17(c)(iv) was the existing Award Modernisation clause inserted by the Full Bench as part of the Interim decision in the Hours of Work Case [Print J3604].

[173] The overtime provision remained unaltered as a consequence of the decision. The relevant overtime provision stated:

[174] In the union's view the overtime provision applies to Saturday and Sunday ordinary hours of work. To the extent there is an ambiguity over the interpretation then the general rule applies that headings should be disregarded if they conflict with an overall clear and unambiguous provision.

[175] In the union's submission an outcome of the Full Bench decision was the clear intent for Saturday and Sunday (ordinary hours) to be paid at the overtime rate.

[176] The employers argued against this proposition submitting that the Full Bench failed to determine a level of penalty for ordinary hours, the overtime rate only applies to overtime, and the award contains no rate for working on Saturday and Sunday as ordinary hours. The rates they now propose for Saturday and Sunday are fair having regard to rates applicable in other industries.

[177] In my view the Full Bench did not adjudicate upon the appropriate penalty for working ordinary hours on a Saturday or Sunday because it decided not to alter penalties: the overtime regime was to apply to Saturday and Sunday ordinary hours of work. The bench did not intend that no rates should apply to working on Saturday and Sunday as ordinary hours. If this was the outcome of the decision is it surprising that no application has been made over the ensuing nine years to rectify the deficiency. In my view, it was an oversight by the Bench that the overtime clause failed to specifically refer to overtime rates (not overtime hours) applying to the working of ordinary hours on a Saturday or Sunday, or more sensibly to insert a new clause providing for double time for working ordinary hours on a Saturday or Sunday.

[178] Given this background the employers' proposed 6.1.1(d)(ii) and (iii) represent a reduction in an existing entitlement. As part of the Item 51 review I do not propose to reduce the rate for working ordinary hours on a Saturday or Sunday.

[179] In this regard I have taken account of the following factors:

· Principle 7 of the Award Simplification Principles.

· A proper basis has not been made out in the proceedings before me, partly because the employers submitted that the rates they proposed were justified on the basis that no current award entitlement existed for working ordinary hours on a Saturday or Sunday. I have already indicated that I hold a different view.

· The decision of the Hospitality Penalty Rates Case, referred to earlier in this decision, that an assessment of whether a provision meets the criteria in Item 51(6) of hindering or restricting productivity, requires more "complex considerations than simply the question of labour costs" [Print P9677, p5].

· The union's evidence that Saturday and Sunday work at ordinary hours is paid at double time [Tpt496].

· The history of the introduction of ordinary hours for Saturday or Sunday which is clearly distinguishable from circumstances in other industries including Metals where ordinary time for Saturday and Sunday were introduced as part of award simplification. In that case I concluded:

[180] The history of the Saturday and Sunday clause in Graphic Arts reveals no such dichotomy was recognised by the Full Bench because it decided not to alter existing entitlements but to build upon the existing facilitative clauses as a means of addressing the particular circumstances of the industry.

[181] It is open to the employers to apply to vary the award pursuant to s.113 of the Act to reduce the entitlement for working ordinary hours on Saturday or Sunday in light of this decision. I have not been presented with a proper case which pertains to the requirements of Item 51(6)(b) and (c) because of the misconceptions held over the effect of the Full Bench decision. For this reason I make no comment on the relative merit of the employers proposed rates. The unions proposed words "Double time shall be paid for all work done on a Saturday and Sunday" will be provided for in the facilitative clause I have determined (6.1.2(c), (d), 6.1.3(c)(ii) and 6.1.3(d) will also reflect this decision).

[182] I have decided:

· 6.1.1(d)(i) will be adopted as proposed by the employers. 6.1.1(d)(ii) will provide for individual facilitation subject to 2.3.4(a), (b) and (c). 6.1.1(d)(iii) will reflect this decision on appropriate rates for working ordinary hours on Saturday or Sunday.

· The provisions 6.1.1(d)(ii) and (iii) will be subject to Level 3 facilitation.

6.1.2 Ordinary hours of work - other than continuous shift work employees

[183] The union draft clause states:

[184] The employers' proposed clause states:

[185] I adopt my reasoning given in respect of 6.1.1(b). This clause will be subject to the same level of facilitation. As such a consistently formatted clause should form part of the reviewed award.

6.1.2 Work cycles

[186] The union position is to retain the current provision:

[187] The employers seek the following provision:

[188] I have formed the view that greater flexibility is justified to access longer shifts than is currently provided for in the existing clause. I have had regard to the material presented including the evidence of "very common shift rosters" [Tpt362]. The evidence demonstrates that many rosters in the industry average hours longer than 152. Whilst there is currently provision to roster up to 5 months this is only accessible via 6.7.2(b)(v) which provides for the banking of RDO's by way of facilitation. I will adopt the employers' 6.1.2(b) as meeting the criteria of Item 51(6)(c). The provision will be subject to Level 2 facilitation and to majority agreement.

6.1.2(c) Days on which ordinary hours are worked

[189] The union's proposed provision states:

[190] The employer's proposed provision states:

[191] The employers proposed clause will be adopted but with the words "double time" inserted instead of "weekend penalty" to reflect this decision.

6.1.2(d) Ordinary hours on Saturday and Sunday.

[192] The union proposes the following provision based on the existing clause:

[193] The employers propose the following clause:

[194] I have already ruled against:

· integrating 2.2 with the facilitative clauses [union 6.1.2(d)]

· allowing individual agreement "whether or not" majority agreement has been reached [employers 6.1.2(d)(ii)]

· the rate to govern ordinary hours of work [employers 6.1.2(d)(iii)]

[195] The employers' provision will be adopted with Level 3 facilitation as amended to reflect this decision.

6.1.3 Ordinary hours of work - continuous shift workers

6.1.3(b) Ordinary hours and work cycles

[196] The employers amended clause is as follows:

[197] The employers proposed the insertion into the award of the following facilitative clause:

[198] The union proposed the following clause for rosters:

[199] I adopt the same reasoning as for 6.1.2(a)(i), (ii), (iii) and (iv) and provisions should be adopted into the proposed award reflecting that part of this decision.

6.1.3 Days on which ordinary hours are worked

[200] The union proposed the following:

[201] I adopt the same reasoning given in respect of the union's proposed 6.1.1(f) and the employers proposed 6.1.1(d)(ii) and (iii). An appropriate clause should be drafted for inclusion in the reviewed award.

6.1.3(f) Ordinary hours on Saturday and Sunday

[202] The union proposed the following provision be retained:

[203] The employers proposed the following provision:

[204] I adopt my reasoning in respect of 6.1.1(d) Days on which ordinary hours are worked. The clause should be inserted into the reviewed award for continuous shift workers based on this decision.

[205] The union propose the following clause for arranging ordinary hours which is the current provision (modified and simplified):

[206] The employers propose the following clause for arranging ordinary hours:

[207] The union position is a slightly modified version of the existing clause 6.2. The employers' clause is based on an equivalent clause inserted into the Metals award. The employers proposed a preamble to Parts 4, 5 and 6 apply, as a consequence of the adoption of this clause in the award.

[208] The existing provision in its entirety fails to meet the criteria of Item 51(6)(a). It contains detail which should not form part of a simplified award. As pointed out in ASD, issues on the arrangement of workings hours should generally be determined at workplace level, between the employer and employee which are subject to a number of minimum conditions being met [p20]. Moreover, the union's proposed 6.1.4(b) sets out objectives which are not allowable [see ASD p71].

[209] However, I accept that 6.1.4(d) - (f) reflect existing entitlements and a proper case has not been out for their deletion pursuant to Item 51(6)(b) or (c).

[210] The clause will be in the following terms which reflects the agreed position that the arrangement of working hours should have the capacity for majority agreement and not only apply to individual employees reaching agreement with the employer:

[211] This clause will be subject to 2.3 and Level 1 facilitation.

[212] The clause will be in the following terms:

6.1.4 Methods of arranging ordinary hours

6.1.4(a)(i) Subject to the employer's right to fix and change the daily hours of employees as prescribed in 6.1.6, the arrangement of ordinary working hours is to be by agreement between the employer and the majority of employees in the enterprise or part of the enterprise affected.

6.1.4(a)(ii) Subject to 2.3.4(a), (b) and (c) the employer may reach agreement with individual employees about how their working hours are to be arranged.

6.4.1(b) Matters upon which agreement may be reached include:

6.1.4(c) Days off

6.1.4(d) Notice Of Days/Shifts Off

Unless otherwise agreed by the employer and a majority of employees in the plant or work section(s) concerned, the employer is required to give four weeks notice of a rostered day off accrued pursuant to 6.1.4(g)(iii) and 6.1.4(g)(iv).

6.1.4(e) Banking Of Rostered Days/Shifts

By agreement between the employer and employee or majority of employees at the plant or work section or sections concerned, rostered days/shifts off may be accumulated (banked) up to a maximum of five days/shifts and must be entitled to be taken in a manner agreed upon between the employer and the employee or the majority of employees prior to the first of such days/shifts accumulating.

[213] The union proposed the following based on the current entitlement:

[214] In respect of 12 hour shifts the employer proposed:

[215] The major difference between the parties is the inclusion of reference to the ACTU Code of Conduct on Twelve Hour Shifts in the union proposal. The union submitted that its proposed provision was allowable because it did not call up in the award the terms of that code. As such it was distinguishable from Commissioner Larkin's decision in Textiles [Print R1336], which found a detailed code on 12 hour shifts not to be allowable. I am not convinced that the `guidance' role of the code could be construed as a s.89A(6) matter which requires that a provision is both incidental to and necessary for the effective operation of the award. In the s.109 Reviews decision the Full Bench in relation to a reference to a Health and Safety Manual Instruction - First Aid stated:

[216] To the extent I am wrong and the code goes beyond being a guide and its terms are called up in the award then I adopt the reasoning of Commissioner Larkin in Textiles. The guidance in the code could not be construed as necessary for the effective operation of an allowable matter namely, Hours of work and in particular twelve hour shifts. The employers' provision meets the salient requirements for health and safety and will be inserted into the award (subject to renumbering).

6.1.5 Makeup time

[217] The union proposal is in the following terms:

[218] The employers propose as follows:

[219] Make up time formed part of the Personal/Carers' Leave Test Case - Stage 2 Full Bench decision [O'Connor P, Ross VP, Marsh SDP, McDonald C, Holmes C, Print M6700]. It is a test case provision and its insertion meets the criteria of Item 51(7)(d). It is also a facilitative provision which is "appropriate" to provide for in the award [Item 51(7)(a)] on the basis of the evidence before the Commission. It can be inserted into the award consistent with Item 51(8). The parties disagree on the wording of the proposed clause. I note that the wording preferred by the union is consistent with that found in the Hospitality Award [26.4]. The clause was inserted into that award prior to the test case provision being established. The employers' proposal is consistent with the test case order [Print N1783 (incorporates I0002 V070a S Print N4084)] and will be inserted into the reviewed award. The clause will be subject to Level 1 facilitation and to individual agreement.

6.1.7 Change of working periods

[220] The union proposed the retention of the existing award provision:

[221] The employers proposed the insertion into the award of a facilitative clause:

[222] I have weighed up the evidence and submissions in relation to introducing the facilitative clause sought by the employers. I find that the evidence from the parties is of limited value. In the circumstances I am not of the view that a proper case has been made out to vary the award in the manner sought by the employers. The employers relied on Item 51(7) but the "appropriate" basis for inserting this clause has not been sufficiently established. The existing clause will be included in the reviewed award.

6.2 Special provision for shift workers

[223] The union opposes this provision. I adopt the reasoning given in respect to 6.1.1(a). The provision will be subject to Level 2 facilitation. 6.2.2(b) will be subject to 2.3.4(a), (b) and (c). The word `span' will be replaced by `spread' to provide consistency with the wording of 6.1.1(a).

6.2.4 Rate for working Saturday shifts

6.2.5 Rate for working Sunday shifts

6.2.5 Rate for Working Sunday Shifts

[224] The same rates as determined in 6.1.1(d)(iii) Days on which ordinary hours are worked will be included in the reviewed award for the reasons given in that section of this decision which deals with that provision.

[225] The current award provides that overtime worked on Saturday or Sunday receive the shift penalty in addition to the overtime rate.

[226] The union proposed that the shift penalties should be paid in addition to the ordinary rates paid on Saturday and Sunday (overtime rate). The employers submitted:

[227] I have formed the following prima facie view on my understanding of the existing award entitlements and the parties respective positions:

· the existing provision governing the cumulative rates when working overtime or on public holidays should remain unaltered.

· the working of ordinary time on Saturday or Sunday should not attract an additional penalty. The payment of an existing penalty rate (overtime) is not synonymous with working overtime. It is the rates not the conditions of work which are identical. However I have not formed a concluded view on this provision given its relationship to 6.1.1(d). My decision in respect of that provision may impact on the parties' respective positions on 6.2.4 and 6.2.5 in the context of Item 51. The parties are directed to confer on this provision in light of my decision and to report to the Commission at the time the order is settled. If required I will issue a short supplementary decision on this issue.

6.2.6 Meal break - continuous shift workers

[228] The effect of this provision is to reduce the length of the meal break from 30 minutes to no less than 20 minutes by agreement. A proper case has not been made out pursuant to Item 51(6) or (7) for the inclusion of the facilitative clause in the reviewed award. It will not be included in the reviewed award.

6.4.3 Minimum periods of pay for overtime

[229] The union sought the retention of the following provision:

[230] This is an existing provision which the employers wish to have deleted from the award on the basis that its operation has the effect of restricting or hindering productivity and that its deletion is fair to employees [Item 51(6)(c)]. The union submitted that it was a fair provision and there was no evidence that the minimum periods of overtime impacted negatively on productivity.

[231] The employers' written submission provided an example of how the clause operates:

[232] The employers submitted that it was fair to employees to remove the provision because, "it is logical to conclude that employees are being offered less overtime than what would be offered if the provision was not in the Award" [Exhibit P8, p97].

[233] The evidence, including reliance by both parties on certified agreement provisions, or lack of them was not of much assistance to the Commission. However, I found the evidence of Mr Crichton and Mr Trappel useful.

[234] In weighing up the arguments I have formed the view that the clause does restrict or hinder productivity and has the potential to deny overtime opportunities to employees and hence impacts on fairness to employees [Item 51(6)(c)] [see Hospitality Penalty Rates decision Print P9677 p5].

[235] It is an unusual provision which will be deleted from the reviewed award pursuant to Item 51(6)(c).

6.4.3 Overtime worked on a Saturday or Sunday

[236] The employers' 6.4.3(a) is the existing provision with "overtime" included before "work done". 6.4.3(b) and (c) are existing provisions.

[237] The overtime provision for Saturday and Sunday will remain in its current terms. The parties should give consideration as to whether cross referencing is required in light of my decision on ordinary time rates for Saturday and Sunday work.

6.4.7(a) Thirty six hour break

[238] This provision is being dealt with in subsequent proceedings. It will remain in the award in its existing terms pending the finalisation of the matter.

6.4.7 Time off in lieu of payment for overtime

[239] The union proposed adoption of the following provision:

[240] The employers proposed the adoption of the following reformatted provision:

[241] This is a new provision for insertion into the award. It is agreed apart from the mechanism for implementing the scheme. It is part of a test case provision which is already in the award and will be inserted pursuant to Items 51(7)(d) and 51(8). The ASD also made provision for updating awards for test case standards [p42]. I am satisfied that the employers' draft provision generally reflects the final order arising out of the Personal/Carers' Leave Test Case decision following the settlement of the order [Print N1783]. That order provided for the agreement to be recorded in the time and wages book each time this provision is used. Given the structure of facilitative clauses in the award this provision will be subject to facilitation in 2.3. The clause will be subject to Level 1 facilitation and individual agreement.

6.7 Time provisions

[242] The parties have agreed on a reformatted provision to replace 6.3.1(a) Rest Interval. By Full Bench direction dated 7 July 1999 the provision was referred me pursuant to s.107(9)(a) of the Act to hear and determine. The parties made written submissions in support of the reformatted clause [Exhibits M30, P29, AIG6].

[243] The existing 6.3.1 states:

[244] The proposed provision states:

6.7.1 and 6.7.2

[245] A distinction is made between a `pause' and a `break' in 6.7.1 and 6.7.2 to provide for two forms of tea breaks. The first break is designed to ensure that productivity is not hindered or restricted while the refreshment is being acquired [Item 51(6)(c)]. In 6.7.2 the tea break is crafted to ensure there is no loss of an existing entitlement as a result of the review. However, the discriminatory aspect of the clause has been deleted [Item 51(7)(f)] and no basis has been made out to reduce the reformatted entitlement. The current reference to the provision of facilities has been deleted as non allowable.

[246] I am satisfied that the provision is allowable pursuant to s.89A(2)(b) and it will be included in the reviewed award.

6.7.3

[247] I am not satisfied that this is an allowable provision. Nor am I satisfied that this is a s.89A(6) provision which is incidental to and necessary for the effective operation of an allowable award matter. It is contemplated by 2.2.1(a) and (b) or relevant health and safety legislation. The provision will not be included in the reviewed award.

Part 7 Leave of Absence and Annual Leave

[248] The union seeks to insert a definition of continuous service to be understood in the context of annual leave, which would make the document "user friendly", "instead of cross referencing" [Tpt511].

[249] In part 4 I have dealt with continuous service. The union proposal is unnecessary duplication and will not be included in the award.

7.1.11 How to calculate the leave entitlement

[250] This is a new provision proposed by the employers and opposed by the union. Its objective is to simplify the calculation of leave entitlements. It is a s.89A(6) matter being incidental to the annual leave clause and necessary for its effective operation. It will be inserted into the award pursuant to Item 51(8).

7.2.4 Sick leave

[251] The union propose a revamped clause:

[252] The employers propose the following provision:

[253] The employers' provision reflects the intent of the existing 7.2.1(e). A proper basis was not advanced to substantiate the changes sought by the union pursuant to Item 51(6). The employers' wording will be adopted into the reviewed award.

[254] The following agreed clauses will be subject to Level 1 facilitation: 6.3.2(a), 6.3.2(b)(i) and (ii), 6.3.5, 7.1.3(b), 7.1.4, 7.5.3(a) and (b), 7.5.9 and 7.5.10.

CONCLUSION

[255] Subject to the outstanding matters I am satisfied that the award varied to reflect this decision meets the statutory requirements of the Act and the WROLA Act and that the Award Simplification Principles have been properly applied. The parties are directed to confer on a draft order. A conference will be listed on 19 August 1999 at 10:00am to settle the order. Any unintended omissions or consequences arising out of the decision may be raised at that time. The parties are also requested to report on the developments in respect of the outstanding issues of Wage Rates, Apprenticeships, Thirty Six Hour Break and Long Service Leave.

BY THE COMMISSION:

SENIOR DEPUTY PRESIDENT

Appearances:

S Taylor and T Burraston for the Australian Manufacturing Workers Union with M Brown

N Rutherford, K Browne and J Tamplin for the Printing Industries Association of Australia

S Smith for the Australian Industry Group

Hearings:

1998.

Sydney.

4 February, 24 November.

1999.

Sydney.

4 February, 15, 16 March, 8 April, 5, 6, 19, 20 May.

ATTACHMENT A

GRAPHIC ARTS - GENERAL - INTERIM AWARD 1995

AWARD SIMPLIFICATION NEGOTIATIONS

7 February 1997

PIAA filed application to vary Graphic Arts Award

3 March 1997

Hearing - Mention - VP McIntyre re. 6 awards, including Graphic Arts

12 March 1997

Matters referred to Full Bench

22 April 1997

Hearing - Directions and Programming - Full Bench

23 April 1997

Directions issued by Full Bench - parties to the 6 awards, including Graphic Arts, directed to confer - AIRC member to conciliate

29 May 1997

Meeting between employers and AMWU

6 June 1997

Meeting between employers and AMWU

13 June 1997

Conciliation Conference before Peterson C

26 June 1997

Report Back - Full Bench

27 June 1997

Statement issued by Full Bench

July 1997

AMWU issues circular urging members to participate in industrial campaign to "force employers and the Industrial Relations Commisson to keep their hands off" the award. Industrial action taken at Amcor Fibre Packaging sites over award simplification.

23 July 1997

Report Back - Full Bench

24 July 1997

Statement issued by Full Bench, including reference to industrial action.

4 August 1997

AMWU provides draft simplified award to employers

13 August 1997

Meeting between employers and AMWU (Full Day)

14 August 1997

Meeting between employers and AMWU (Full Day)

26 August 1997

Report Back - Full Bench

1 September 1997

Statement issued by Full Bench

8 September 1997

Hearing - Programming and Directions

15 September 1997

Meeting between employers and AMWU (Full Day)

16 September 1997

Meeting between employers and AMWU (Full Day)

8 October 1997

Meeting between employers and AMWU (Full Day)

5 November 1997

Meeting between employers and AMWU (Full Day)

25 November 1997

Meeting between employers and AMWU (Full Day)

18 December 1997

Conciliation Conference before Peterson C

4 February 1998

Conference before SDP Marsh

25 February 1998

Meeting between employers and AMWU

10 March 1998

Conference before SDP Marsh

19 March 1998

Meeting between employers and AMWU (Full Day)

25 March 1998

Conciliation before SDP Marsh (Full Day)

8 April 1998

Conciliation before SDP Marsh (Full Day)

21 April 1998

Meeting between employers and AMWU

4 May 1998

Meeting between employers and AMWU

5 May 1998

Report Back Conference before SDP Marsh. The following program was agreed upon:

11/5 Full day of negotiations

19/5 Full day of neogitations

21/5 Report back to SDP Marsh

25/5 Conciliation before SDP Marsh (Full Day)

2/6 Conciliation before SDP Marsh (Full Day)

18&19/6 Arbitration before SDP Marsh

11 May 1998

Meeting between employers and AMWU (Full Day)

19 May 1998

Meeting between employers and AMWU (Full Day)

12 May 1998

Meeting between employer and AMWU and AIRC Report Back before SDP Marsh

25 May 1998

Conciliation before SDP Marsh - AMWU seeks cancellation of arbitration due to union elections - Conciliation scheduled for 2 June cancelled and 18 and 19 June scheduled for conciliation rather than arbitration

10 June 1998

AMWU sends letter to AIRC advising of change in leadership of AMWU and seeking cancellation of conciliation on 18 and 19 June, but listing of a Report Back on 18 June

17 June 1998

AMWU sends letter to AIRC advising that it was withdrawing the draft award that it had previously proposed and seeking time for the new leadership to consider its position. The AMWU also sought that the Report Back on 18 June 1998 be cancelled. SDP Marsh was not prepared to cancel the Report Back given the objections of the employers.

18 June 1998

Report Back Conference before SDP Marsh

5 August 1998

AMWU's new leadership tables proposed draft award

13 August 1998

Meeting between employers and AMWU

26 August 1998

Report Back Conference before SDP Marsh

8 September 1998

Meeting between employers and AMWU

21 September 1998

Report Back Conference before SDP Marsh

22 September 1998

Directions issued by SDP Marsh

23 September 1998

AMWU stoppage in Victoria re. Graphic Arts Award simplification

19 October 1998

Written submissions filed consistent with Directions of 22 September 1998

22 October 1998

AMWU stoppage in NSW re. Graphic Arts Award simplification

26 October 1998

Report Back Conference before SDP Marsh

19 November 1998

Report Back Conference before SDP Marsh. The dates of 9, 10, 16 and 17 of December were set aside for arbitration.

12 November 1998

AMWU schedules National stoppage for 18 November 1998. Application for s.127 order filed by Ai Group and PIAA

13 November 1998

S.127 application listed before Cargill C. AMWU failed to appear so matter relisted before VP McIntyre on 16 November.

16 November 1998

VP McIntyre issues s.127 order directing that AMWU call off the stoppage planned for 18 November. AMWU ignores order.

17 November 1998

Federal Court proceedings re. stoppage on 18 November.

18 November 1998

Stoppage proceeds on 18 November 1998.

24 November 1998

Report Back Conference and Directions Hearing before SDP Marsh

5 March 1999

Conference before SDP Marsh

15, 16 and 17 March 1999

Witness evidnece and submissions on consent matters

22 April 1999

Deadline for filing of written submissions and non-agreed matters

22 April 1999

Report Back and Programming scheduled before SDP Marsh

4 and 5 May 1999

Oral submissions

ATTACHMENT B

89A Scope of industrial disputes

(2) For the purposes of subsection (1) the matters are as follows:

(3) The Commission's power to make an award dealing with matters covered by subsection (2) is limited to making a minimum rates award.

Limitations on Commission's powers

(4) The Commission's power to make or vary an award in relation to matters covered by

paragraph (2)(r) does not include:

(5) Paragraph (4)(b) does not prevent the Commission from including in an award:

(6) The Commission may include in an award provisions that are incidental to the matters in subsection (2) and necessary for the effective operation of the award.

51 Variation of awards after the end of the interim period

(1) As soon as practicable after the end of the interim period, the Commission must review each award:

(2) The Commission must vary the award to remove provisions that ceased to have effect under item 50.

(3) When varying the award under subitem (2), the Commission may also vary the award so that, in relation to an allowable award matter, the award is expressed in a way that reasonably represents the entitlements of employees in respect of that matter as provided in the award as in force immediately before the end of the interim period.

(4) If, immediately before the end of the interim period, the award provided for rates of pay that, in the opinion of the Commission:

the Commission may vary the award so that it provides for minimum rates of pay consistent with sections 88A and 88B of the Principal Act and the limitation on the Commission's power in subsection 89A(3) of that Act.

(5) If the Commission varies the award under subitem (4), it must include in the award provisions that ensure that overall entitlements to pay provided by the award are not reduced by that variation, unless the Commission considers that it would be in the public interest not to include such provisions.

(6) The Commission must, if it considers it appropriate, review the award to determine whether or not it meets the following criteria:

(7) The Commission must also review the award to determine whether or not it meets the following criteria:

(8) If the Commission determines that the award does not meet the criteria set out in subitem (6) or (7), the Commission may take whatever steps it considers appropriate to facilitate the variation of the award so that it does meet those criteria.

ATTACHMENT C

The union seeks to retain the existing award provision (as amended by Exhibit P24):

The employers' provision states:

ATTACHMENT D

CLAUSES TO BE INCLUDED IN FACILITATIVE CLAUSE 2.3

Level 1 Individual

4.1.3(b) Part-time hours of work

4.1.4(b) Casual employment

6.1.1(b)(iii) Hours of work in excess of 8.75 hours up to 10 hours - day work

6.1.2(b)(iii) Hours of work in excess of 8.75 hours up to 10 hours - other than continuous shift workers

6.1.3(b)(iii) Hours of work in excess of 8.75 hours up to 10 hours - continuous shift workers

6.1.4(a)(ii)

6.1.4(c) Method of arranging ordinary working hours

6.1.4(e) Banking of rostered days/shifts

6.1.5 Make up time

6.4.7(a) Time off in lieu of overtime

6.3.2(a) Not taking a meal when only six hours is worked

6.3.5 Alternation of a meal break

7.1.3(b) Taking annual leave within 2 years of accrual

7.1.4 How can annual leave be taken

7.5.3(b) Substitution of a public holiday

7.5.10 Rostered day off falling on a public holiday

Level 1 Majority

6.1.1(b)(iii) Hours of work in excess of 8.75 up to 10 hours - day workers

6.1.2(b)(iii) Hours of work in excess of 8.75 up to 10 hours - other than continuous shift workers

6.1.3(b)(iii) Hours of work in excess of 8.75 up to 10 hours - continuous shift workers

6.1.4(a)(i)

6.1.4(c)(i) Method of arranging ordinary hours

6.1.4(d) Notice of days/shifts off

6.1.4(e) Banking of rostered days/shifts

6.3.2(a) Not taking a meal when only 6 hours is worked

6.3.2(b)(ii) Not taking a meal when between 5 and 6 hours is worked

7.5.3(b) Substitution of a public holiday

7.5.9 When night shift takes public holiday

Level 2 Individual

6.1.1(a)(iii) Altering the spread of hours - day workers

6.2.2(b) Altering the spread of hours - shift workers

6.3.2(b)(i) Working over five hours and up to six hours without a meal break

Level 2 Majority

6.1.1(a)(ii) Altering the spread of hours - day work

6.1.1(c) Length of work cycle - day work

6.1.2(b) Length of work cycle other than continuous shift workers

6.2.2(b) Altering the spread of hours - day work

Level 3 Individual

6.1.1(d)(ii) Ordinary hours worked on Saturday and/or Sunday - day work

6.1.2(d)(ii) Ordinary hours worked on Saturday and/or Sunday - other than continuous shift workers

6.1.3(f)(ii) Ordinary hours worked on a Saturday or Sunday - continuous shift workers

Level 3 Majority

6.1.1(d)(iii) Ordinary hours worked on Saturday and/or Sunday - day work

6.1.2(d)(i) Ordinary hours worked on Saturday and/or Sunday - other than continuous shift workers

6.1.3(f)(i) Ordinary hours worked on a Saturday and/or Sunday - continuous shift workers

ATTACHMENT E

PART 6 - HOURS OF WORK, BREAKS, OVERTIME, SHIFT WORK, WEEKEND WORK

6.1 HOURS OF WORK (DAY WORK)

6.1.1 For the purposes of this award day work is work (other than overtime work) performed by an employee between the hours of 7.00 a.m. and 6.00 p.m. save and except work performed by an employee employed to clean the premises, and by the Linotype Mechanic or other employee who attends to arrange the heating of Linotype or Like Metalpots or other heating apparatus for the machines or buildings, may be between the hours of 6.30 a.m. and 6.00 p.m.

6.1.2 The ordinary hours of work for day work shall not exceed an average of 38 hours per week or an average of 7 hours 36 minutes per day.

6.1.3 Subject to clause 6.2 of this award:

6.1.4 The ordinary hours of day work, subject to the exception provided in subclause 6.1.7 herein, shall be worked on not more than five days Monday to Friday inclusive of each week and may be arranged on any of the days or all of the days of each week, Monday to Friday inclusive.

6.1.5 Subject to clause 6.2 of this award, the ordinary hours of day work performed by an employee notwithstanding subclause 6.1.3 herein, can be extended by agreement between the employer and the majority of employees at the plant or work section or sections concerned beyond eight and three quarters and up to ten hours per day between the hours of 7.00 am and 6.00 p.m. on any day Monday to Friday inclusive.

6.1.6 Subject to subclause 2.2.4 and notwithstanding subclauses 6.1.1, 6.1.3 and 6.1.5 herein, an employee may work ordinary hours outside the hours 7.00 a.m. and 6.00 p.m. and/or in excess of ten hours and up to twelve hours. Where ordinary hours of twelve on any day are introduced the terms of agreement shall also be subject to:

6.1.7 Subject to subclause 2.2.4 and notwithstanding subclause 6.1.4 herein, ordinary hours of work may be arranged on any day of the week including Saturday and Sunday.

6.1.8 Juniors

6.1.9 Fixation and change of hours

6.1.10 Posting of working hours

6.1.11 Emergency provisions

6.2 IMPLEMENTATION OF ORDINARY WORKING HOURS

6.2.1 Methods of implementation of ordinary working hours may apply differently to various groups or sections of employees in the plant or establishment concerned.

6.2.2 In each plant an assessment should be made as to which method of implementation best suits the business and the proposal shall be discussed with the employees concerned, the objective being to reach agreement on the method of implementation.

6.2.3 In absence of agreement at plant level in respect to the implementation of ordinary working hours the following procedure shall be applied without delay:

6.2.4 Days off

6.2.5 Notice of days off

6.2.6 Banking of rostered days/shifts

6.2.7 Method of implementation of ordinary working hours

6.3 BREAKS AND MEALS

6.3.1 Rest intervals

6.3.2 Meal periods

6.4 OVERTIME

6.4.1 Minimum periods or pay therefor

6.4.2 Weekly workers

6.4.3 Work on a Saturday or a Sunday

6.4.4 Work on a holiday

6.4.5 Meal period during overtime

6.4.6 Meal money

6.4.7 Break between working periods

6.4.8 Limitation of overtime

6.4.9 Employer may require overtime

6.4.10 Employee may be excused from overtime

6.4.11 Employee missing usual conveyance

6.5 CALL BACK

6.5.1 When an employee is called back to perform work at a time when he/she would not ordinarily be at work and the employee has not been notified prior to last finishing work that she/he would be so called back, such call back shall be a call for all purposes of this award.

6.5.2 Except as otherwise provided in subclause 6.5.4 hereof, an employee called back shall be paid one hour's ordinary pay for such call and, in addition, shall be paid as provided in subclause 6.5.3 hereof.

6.5.3 All time worked on a call shall be paid for at double ordinary hourly rates of pay with a minimum of three hours' work or payment at such rate in lieu thereof.

6.5.4 In the event of an employee receiving a call and then, prior to commencing work in accordance therewith, being informed by the employer that their services on such call are not required, the employee shall, if she/he has:

6.5.5 The provisions of the clause shall not apply where notification is given after the employees last occurring working day immediately preceding a weekend or rostered period off greater than 48 hours that he/she is required to report for overtime work prior to his/her normal commencing time on the first working day after that weekend or rostered period off and such overtime work:

6.6 STAND-BY FOR WORK

6.6.1 A stand-by for work is that period of time when an employee is required by their employer to hold themselves in readiness to perform work outside of their ordinary working hours but is not required to be at their place of employment during that period of stand-by. Provided an employee and their employer make arrangements as to where the employee may be contacted by the employer and meet the employer's request to report for work if necessary or be released from standing by for work, the employee's movements during such period of stand-by shall be unrestricted.

6.6.2 For all time an employee is required to stand-by for work as described in subclause 6.6.1 hereof he/she shall be paid, if a:

6.6.3 An employee required to stand by for work at their place of employment shall be paid as though he/she were working, i.e, if such stand by is during:

6.7 SHIFT WORK

6.7.1 Definitions

6.7.2 Hours, Non-continuous Shift work

6.7.3 Hours, continuous shift work

6.7.4 Shift allowances

6.7.5 Allowances part of weekly wage

6.7.6 Meal break - continuous shift work

6.7.7 Change of working periods

6.7.8 Fixation and change of hours

6.7.9 Posting of working hours

6.7.10 Emergency provisions

6.7.11 Shift workers not to work alone

Decision Summary

   

Award - review of award - award simplification - allowable matters - s89A Workplace Relations Act 1996 - Item 51 Workplace Relations and Other Legislation Amendment Act 1996 - various employees, graphic arts industry - draft award provisions reviewed - approach of Commission in reviewing award - existing entitlements to be changed if Commission considers it appropriate or necessary to comply with legislation even if no evidence presented to that effect - Award Simplification Principles [ASD] followed - responsibility to review Award independent of existence of enterprise bargaining outcome following Full Bench in ACTION Buses [PrintR7001] - enterprise flexibility -

Re: Graphic Arts - General - Interim Award 1995

C No 20241 of 1997

Print R7898

Marsh SDP

Sydney

5 August 1999

Printed by authority of the Commonwealth Government Printer

<Price code P>

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