PN1

THE COMMISSIONER: Good morning, everyone, I'll take the appearances, please?

PN2

MR M MINUCCI: If the Commission pleases, my name is Minucci of counsel and I appear with Mr Allen, for the applicants.

PN3

THE COMMISSIONER: Thank you, Mr Minucci.

PN4

MR J TIERNEY: If the Commission pleases, my name is Tierney, on behalf of the SDA, I seek permission to appear.

PN5

THE COMMISSIONER: Sure. Now, Mr Minucci, permission has already been granted to your side of the table. Do you take any objection to - - -

PN6

MR MINUCCI: There's not objection to - - -

PN7

THE COMMISSIONER: I presume, Mr Tierney, it's put it's a 596(2)(a) point?

PN8

MR TIERNEY: It is.

PN9

THE COMMISSIONER: Yes. I'm satisfied, in the circumstances, it's appropriate to grant permission to appear. It will enable the matter to proceed more efficiently.

PN10

Now, let's just deal with the basis, first of all, and, to a certain extent, I'm refreshing my own memory here, about the involvement of the SDA. The SDA is not a bargaining representative but on the previous occasion, as I recall, I indicated I was inclined to hear from the SDA, in respect to whether or not I should approve the agreement and rely on the capacity to do so, pursuant to section 590.

PN11

So is there anything - the first question is, Mr Minucci, was there anything you wanted t say about whether that's been sufficiently dealt with?

PN12

MR MINUCCI: There's nothing - my instructions are is we've put our position in respect of the question of the SDA's standing. The Commission has made its determination, in that regard, under section 590. I don't have anything further to say, in relation to that issue.

PN13

The only other matters, in preliminary, that is, the Commission would probably recall is that various exchanges of correspondence that have occurred with your Chambers, from on or about 30 July to on or about 12 August, there are two sets of submissions each that have essentially made their way through to your Chambers.

PN14

THE COMMISSIONER: Yes.

PN15

MR MINUCCI: As I understand it, the hearing before the Commission today will proceed on the basis of those documents and if there's anything further that the SDA wishes to add, we can then address those matters accordingly.

PN16

THE COMMISSIONER: Of course, as well as the information I provided, of course, to the parties yesterday.

PN17

MR MINUCCI: And the Commission's taken the next point out of my mouth. My instructions are is that we - first, we've been provided with an updated version of the background document - - -

PN18

THE COMMISSIONER: Before you go to that, I just want to square away on this point, having just been looking at some recent decisions where there's been procedural fairness issues arise where one party didn't have all of the documents, but I can't ask you what you don't know.

PN19

I guess what I can disclose is that, and I'm looking to my associate at this point, as far as the Commission is aware, both parties have all of the information that's been exchanged, in respect of this matter, about every point and so I believe we're in a position that both sides are able to respond to the other side, in respect to any matter that's been raised.

PN20

I simply make that point because there was some period of exchange leading to this one now, there's so many of these applications, but there was some exchanges between the Commission and the applicant, which did not involve the SDA as the SDA was not on the scene in any shape or form, but having regard to the fact that I'm now hearing from the SDA I am confident that you've got all of that information, which predated your involvement. Does that make sense?

PN21

MR TIERNEY: I'm grateful for that, Commissioner, and, certainly, nothing in the line of correspondence suggests that there's a document referred to that we don't have, or anything to that effect.

PN22

THE COMMISSIONER: All right. Good. Okay, Mr Minucci?

PN23

MR MINUCCI: Sorry, Commissioner, I went too early to the background documents. I've been provided with a copy, yesterday, of a background document prepared by the Commission's Chambers.

PN24

THE COMMISSIONER: Perhaps, before you do start, I will stop speaking in a minute and let the parties get on with things, but just the purpose, as you would have probably gleaned, but in case you were in any doubt, I was really looking to see if we can at least establish a baseline, if you like, about what the differences are, in terms of the matters that are more easily quantified, perhaps, than others. Then that's a bit of a jumping off point to considering other matters that might arise in the BOOT consideration. That's the purpose.

PN25

MR MINUCCI: Yes, Commissioner. Certainly, from my examination of the material provided yesterday and the updated version that the Commission's associate provided to us this morning, for the purposes of the record, as I understand it from discussions with the Commission's associate, the update this morning relates to one matter and that is on page 3 of the background document, the award ordinary level 3 table on the right-hand side of page 3, at the top right-hand corner, there was a change that was made simply to the commentary, under the heading of Allowances, such that laundry and meal, on the previous version, were opposite. That is, the meal and laundry labels have changed but that the values there are the same.

PN26

THE COMMISSIONER: Yes.

PN27

MR MINUCCI: Subject to that change, my instructions are that we are comfortable to proceed, on the basis of the Commission's proposed background document and that that can be the suitable jumping off point, for the purposes of this application.

PN28

THE COMMISSIONER: All right. Just for the avoidance of doubt, you agree with the terms that are in there?

PN29

MR MINUCCI: Yes, I do.

PN30

THE COMMISSIONER: Okay. Well, the mathematics?

PN31

MR MINUCCI: Yes.

PN32

THE COMMISSIONER: All right. Okay. Mr Tierney?

PN33

MR TIERNEY: Commissioner, we do not take issue with the background document, and agree - - -

PN34

THE COMMISSIONER: All right. Okay. Well, that said, it's a question of what the parties want to put from here. I've, of course, got the written materials that have been provided and have regard to those. It may be - well, it's up to you how you want to present your case. It might be that having regard to the fact that the background document is an agreed fact, parties may want to frame their submissions as to whether or not this applicant passes the BOOT, having regard to what's been set out there.

PN35

The last thing I'll say, before you start is, parties are aware that I've expressed a provisional view, in the past, that this agreement does pass the BOOT. I stress to the parties that that's a provisional view and my mind remains open to be convinced otherwise. That's it. Off you go.

PN36

MR TIERNEY: Commissioner, I'm not entirely clear as to the order in which you prefer us to proceed. You have written submissions from both parties, but can I flag - - -

PN37

THE COMMISSIONER: Just on that, it seems, subject to anything Mr Minucci would want to say, probably the better view is this. The applicant has made the application, that provisional view has been expressed, which, as I've just said, can certainly change. SDA says the provisional view is wrong and probably then it falls to you - probably the best way to proceed is you make good that argument and then Mr Minucci responds and I'll decide.

PN38

MR TIERNEY: Thank you, Commissioner.

PN39

Commissioner, what you have before you, as set out in your background document, are sum calculations that form the basis for your provisional view, this application for an agreement meets the BOOT.

PN40

Can I say, the time that's expressly worked there, 15.2 hours with 0.375 hours of overtime, is a relatively specific figure.

PN41

THE COMMISSIONER: I will just explain the working behind that attachment B, that's what you're referring to?

PN42

MR TIERNEY: Yes, Commissioner.

PN43

THE COMMISSIONER: These are a recalibration, probably not quite the right word, sorry, a recalculation, that is the right word, of models that the employer provided. They're based on a monthly roster and then broken down into weekly rates, which is why you end up with those slightly odd amounts of 0.375 hours of overtime, which does look a little odd, but it's because it's been divided down into a weekly amount, to keep us on an apples and apples situation with comparing weekly amounts. Does that make sense?

PN44

MR TIERNEY: It does, Commissioner, I'm grateful for that indication.

PN45

THE COMMISSIONER: And in terms of why those models, I'm not saying, to be clear, that that's - that they're preferable models, or their realistic, I'm not saying any of those things. These are simply the models that the applicant provided which, having regard to factors that are now known, it was appropriate to recalculate, put that back to the applicant and see if they agree they do. So that's their status, if you like.

PN46

MR TIERNEY: Yes, Commissioner, and I saw the correspondence in which further matters were ventilated, by reference to those tables.

PN47

Commissioner, what hasn't been put is a vast variety of other potentially representative examples of how employees in the industry may work. In its written material the SDA has not provided further calculations, by reference to, say, full-time employees or full-time employees who may be working a certain amount of overtime.

PN48

Some calculations have now been done by the SDA, but they're not before the Commission and I haven't provided them to my learned friend either, these were done last minute.

PN49

I would submit, Commissioner, that it would be appropriate that some calculations are put before the Commission, to enable you to have a view as to other representative examples of how employees may work and whether - - -

PN50

THE COMMISSIONER: Well, you should have done that before today.

PN51

MR TIERNEY: I accept that Commission. I can take it no further than that. All I can do is refer to the written submissions and note the points where we say the BOOT is not met.

PN52

In light of that, we say there are three categories of matters that make the agreement less beneficial. The first category is the definite financial benefits. These are benefits that an employee will get if they work at a certain time. Definite financial benefits that are removed are leave loading, as is acknowledged by the applicant, meal allowance and laundry allowance.

PN53

THE COMMISSIONER: Can I just go to the meal allowance. Do you contest the proposition that the undertaking that's been provided neutralises, if I put it that way, the meal allowance? It seems to me that the meal allowance is now all square with the award.

PN54

MR TIERNEY: I do contest that, Commissioner.

PN55

THE COMMISSIONER: Do you? Yes?

PN56

MR TIERNEY: If I may go to section 31 of the agreement?

PN57

THE COMMISSIONER: Yes, clause 31?

PN58

MR TIERNEY: Clause 31, my apologies. Clause 31 states that:

PN59

In a calendar month where an employee is required, on more than one day, to work more than one hour of overtime, without being given 24 hours notice the employee will either be provided with a meal or paid a meal allowance of $12.91.

PN60

So only in the circumstances where an employee works overtime on more than one day in a calendar months.

PN61

THE COMMISSIONER: Which is more onerous than the award.

PN62

MR TIERNEY: Yes.

PN63

THE COMMISSIONER: If somebody can turn up the award. So the award provides:

PN64

An employee required to work more than one hour of overtime after the employees ordinary time of ending work, without being given 24 hours notice, with be either provided with a meal or paid a meal allowance of - - -

PN65

Well, I've got $13.32, but I think I've still got the non test time amount.

PN66

MR TIERNEY: Yes.

PN67

THE COMMISSIONER: But presuming that was $12.91 in the - - -

PN68

MR TIERNEY: It was.

PN69

THE COMMISSIONER: Yes, at test time.

PN70

MR TIERNEY: So the distinction there is, "Of more than one day".

PN71

THE COMMISSIONER: I see.

PN72

MR TIERNEY: So on the first day which an employee is required to work overtime, and that's any employee, there'll be no entitlement to a meal allowance.

PN73

THE COMMISSIONER: So you say to neutralise that, the words, "On more than one day", would have to have no effect in clause 30 in the agreement, 30.1?

PN74

MR TIERNEY: Yes.

PN75

THE COMMISSIONER: If that was the case it would be neutralised, is that right?

PN76

MR TIERNEY: We would have to accept that that would be neutralised.

PN77

THE COMMISSIONER: I understand, thank you.

PN78

MR TIERNEY: And at clause 30.2, that applies to part-time employees and you'll see, on the first instance, they are required to work more than one. So it's neutralised in respect of part-time employees. Clause 30.1 is neutralised by clause 30.2, in respect of part-time employees only.

PN79

THE COMMISSIONER: So to just understand that, the fact that it says, "On more than one day", in 30.1, is of no matter in respect of part-time employees, it only matters for full-time employees?

PN80

MR TIERNEY: Yes.

PN81

THE COMMISSIONER: Okay. All right.

PN82

MR TIERNEY: Plainly one can infer, from the presence of clause 30.2, that that, "On more than one day", for those words to be given meaning it must be by reference to the fact that in 30.2 it refers to there being a first instance.

PN83

THE COMMISSIONER: Yes. Okay.

PN84

MR TIERNEY: Commissioner, you noted the leave loading, so I won't draw on that any further.

PN85

The third definite benefit is the - - -

PN86

THE COMMISSIONER: I think, just on the leave loading, in light of the background document being an agreed fact, that's factored in so we now know that the leave loading is now deducted, if you like, from the over award payment and we know what's left, what's the change. And it's a question of how far that spreads, in terms of the other matters.

PN87

MR TIERNEY: Yes, Commissioner.

PN88

So the next definite financial benefit is the laundry allowance, and that is in clause 19.2(b) of the award.

PN89

THE COMMISSIONER: Yes.

PN90

MR TIERNEY: And is covered in, to the extent it is, in the uniform allowance provision of the agreement, at clause 29.

PN91

THE COMMISSIONER: Yes.

PN92

MR TIERNEY: Again, clause 29 applies only to part-time employees, whereas clause 19.2(b)(i) applies to full-time employees and provides that those full-time employees receive a benefit of $6.25 per week.

PN93

THE COMMISSIONER: Yes.

PN94

MR TIERNEY: So it's another matter that needs to be factored in, as a direct financial comparison in assessing whether the agreement meets the BOOT.

PN95

Similarly, there are circumstances in which - in the context of casuals as well, casual employees are paid $1.25 per shift, under clause 19.2(b)(ii), and no such entitlement is provided, in the context of clause 29 of the agreement.

PN96

THE COMMISSIONER: Yes.

PN97

MR TIERNEY: So the next category of benefit that we say is missing are contingent financial benefits. By that I mean financial benefits that may arise - - -

PN98

THE COMMISSIONER: Sorry, just before you move on, there's also, aside from the laundry aspect, there's the special clothing provisions in the award, at 9.2(a), which is a reimbursement for purchasing clothing for replacement.

PN99

MR TIERNEY: Yes.

PN100

THE COMMISSIONER: What do you want to say to that?

PN101

MR TIERNEY: That's a matter raised in the submissions that have been filed.

PN102

THE COMMISSIONER: That's not in the agreement, is it?

PN103

MR TIERNEY: No. And what's put by the applicant, in respect of special clothing allowance, is that section 325 of the Fair Work Act provides adequate protection to employees, and prospective employees, against unreasonable requirements to spend money.

PN104

The terms of clause 90.2 provide the opportunity for a payment where special clothing is supplied. We would say that the terms of section 325 don't provide adequate protection when such a matter is enshrined in the award.

PN105

THE COMMISSIONER: Yes.

PN106

MR TIERNEY: So I was providing that as a contingent financial benefit. I've dealt with that.

PN107

The next point is the matter of superannuation. That's superannuation for workers' compensation. So the entitlement, at clause 21.5 of the award, states that:

PN108

The employer must make superannuation contributions in the context of work related injury or illness, for the period of absence from work of the employee, due to work-related injury or work-related illness, provided that the employee is receiving workers' compensation payments or regular payments.

PN109

That clause is not present in the agreement and the applicant's response to that is to refer to the various offsets in the award, including reference to their own contingent financial benefit, such as uncapped jury service leave and study leave. We say - - -

PN110

THE COMMISSIONER: Don't they also say that the Commission can rely on some statutory obligation?

PN111

MR TIERNEY: Yes, in the context of paid leave.

PN112

THE COMMISSIONER: I see.

PN113

MR TIERNEY: That's accepted, Commissioner.

PN114

THE COMMISSIONER: All right, but not in respect of 21.5(b)?

PN115

MR TIERNEY: Yes, that's correct, Commissioner.

PN116

THE COMMISSIONER: Okay.

PN117

MR TIERNEY: So, Commissioner, you've noted the disability allowance and the Broken Hill allowance matters. In respect of the Broken Hill allowance - - -

PN118

THE COMMISSIONER: The coal allowance, you're referring to? Which allowance?

PN119

MR TIERNEY: Clauses 19.8 and 19.9 of the award.

PN120

THE COMMISSIONER: The cold workers disability allowance, yes. Yes?

PN121

MR TIERNEY: Yes, the cold workers disability allowance. We rely on what's been filed, in respect of those allowances.

PN122

In respect of the Broken Hill allowance, Commissioner, we note that in correspondence with the applicant, there was a - you sought further submissions as to whether an undertaking may be appropriate. It wasn't clear, on the face of the material I've seen, whether that undertaking was agreed to or - - -

PN123

THE COMMISSIONER: No, it wasn't. My recollection is that the submissions were the effect that there is no one anywhere near Broken Hill basically, so it's irrelevant. Do you agree with that?

PN124

MR TIERNEY: Well, if there's no one near Broken Hill, then so be it. It would be a question of what would come if a person was to be employed there, but we have no evidence on that, so I don't take that any further.

PN125

THE COMMISSIONER: What about the cold work disability allowance? It's when you're entering a cold chamber, so I'm reading that as a walk-in fridge, where the Coca-Cola might be, but it might be that you walk behind that ice at a bottle shop, or whatever, to put things in there. But the question is, is it a relevant consideration or not? Is it something that you think would be attracted in these establishment, Subway stores?

PN126

MR TIERNEY: Commissioner, I'm hesitant to give evidence from the Bar table, but - - -

PN127

THE COMMISSIONER: Don't be hesitant just don't do it. But if there's any submission you want to make about it.

PN128

MR TIERNEY: It appears that there may be circumstances in which employees may be required to enter a cold storage - a refrigerated storage container, a cold chamber, whether it's for the purposes of retrieving refrigerated goods, or otherwise, and in such a case it may be that the cold work disability allowance may arise. But, again, it's a matter that could be neutralised by way of undertaking, in the event that someone - the evidence of the applicant is that it doesn't arise. The submissions of the applicant are that it doesn't arise, but in the event that it does, and it's conceivable that it may, it may be appropriate for that to be dealt with by undertaking.

PN129

THE COMMISSIONER: Okay.

PN130

MR TIERNEY: Now, in terms of the non monetary protections and privileges that arise under the award, we note a few matters.

PN131

The first is in respect of the dispute resolution clause, 6.3 of the enterprise agreement. There's an obligation, under that clause, for one of the steps that needs to be taken is that:

PN132

If it can't be resolved in discussion between the parties -

PN133

This is clause 6.3:

PN134

the matter may be referred to an agreed private independent mediator for mediation.

PN135

It's not clear as to how payment may be made for that independent mediator, or what obligation may be on the employee to foot the bill for that private mediation. We say that creates an unfair burden on the employee that's significantly less benefit than a standard dispute settlement procedure clause.

PN136

THE COMMISSIONER: Mm hm.

PN137

MR TIERNEY: On clause 14.1(d), this is the deductions clause.

PN138

THE COMMISSIONER: This is the agreement or the award?

PN139

MR TIERNEY: This is in the agreement. My apologies, it's 51 in the agreement.

PN140

THE COMMISSIONER: Right.

PN141

MR TIERNEY: Commissioner, we've dealt with that in our written submissions. We say that the expansive nature of the deductions clause results in the employees being worse off, in respect of this issue, under the agreement than they would be under the award.

PN142

As you'll see, the deduction clauses provide for significant scope for the employer to seek deduction, both of overpayments and the replacement value of any property belonging to the employer, or under their control.

PN143

What's put in response is that there's an obligation to obtain employee consent, authorisation. We see that as being of limited value in then context. Presumably the consent will be obtained, by way of the employment agreement.

PN144

It seems that the terms of the Act, in section 326, on the question of permitted deductions, sorry, 324 - - -

PN145

THE COMMISSIONER: Yes.

PN146

MR TIERNEY: The ways in which monies can be deducted from employees, from amounts payment to an employer, are rigidly confined. Providing for these more expanded opportunities for deduction leaves the employees worse off, as against both - - -

PN147

THE COMMISSIONER: Can I just put a proposition to you? Generally, these types of provisions, to the extent that they may - I mean take 51.3, for example:

PN148

The replacement value of any property belonging to the employer provided to the employee, or under the employee's control -

PN149

What does that mean:

PN150

for the purposes of completing employment duties the employer has not returned upon termination.

PN151

Now, it just seems to me that the scheme of the legislation is that 336 provides that those terms have no effect, if one can make good the circumstances set out in 1(a) or (b). So 1(b) might be relevant to the circumstances in 51.3, where the employer's making outrageous claims about what was in their control or something. But in terms of the approval scheme that I'm to adhere to, it's not an uncommon practice for me to, noting the decision, that I think that a provision may well be unlawful. But it will actually depend on the circumstances. It might be that 51.3 is not unlawful because it's reasonable, in the circumstances, to do what they're doing, subject to the authorisation.

PN152

I've tended to look at it through that frame. It's sort of hard to frame it in the BOOT context, because it's so contingent and to be meaningful, if one's to take a worst case scenario, well virtually no - you'd be paying a hell of a lot of money to be able to overcome impossible claw back that the employer might engage in. Does that make sense?

PN153

MR TIERNEY: Yes, Commissioner. In terms of section 326 it's references to the term. So, I mean, the example you gave there where there may be property that is of significant value which may have been misplaced, for example, whether someone's left an iPad on a train, or something like that, there's examples you can consider.

PN154

THE COMMISSIONER: Yes.

PN155

MR TIERNEY: The question is whether the term is unreasonable. So if there were circumstances in which recovery of property is a reasonable act, in the circumstances, say return of the special clothing, for example, return of the shirt or the visor, I think if - the term itself is unreasonable, in the circumstances. The fact that a reasonable request may be made wouldn't safe the provision from being caught by 1(b).

PN156

THE COMMISSIONER: I put this proposition to you, that 326 says that it has no effect. So if you're right, I guess this is the point, in terms of my consideration, it's a reasonable basis for me to proceed, isn't it, to say, "Well, if you're right", and you may be right, you may not be right, and whether you're right or not probably depends on the circumstances, whether it's an iPad or whether it's a spoon, well, you can get expensive spoons these days, but you see the point that 326 will take care of that. To that extent, I'm not sure that it's really a BOOT consideration, would you agree?

PN157

MR TIERNEY: Commissioner, I would submit that having terms that are likely to be found - as a general proposition, having terms that are likely to be found to be not permitted, under section 326, allowed to proceed through approval and be enshrined in an enterprise agreement, creates the prospect of a detriment. I can't put it so highly as to say there's a definite disadvantage to the employees, but if the Commission is minded to consider a term unreasonable, again as a general proposition, then it shouldn't form part of the agreement and it shouldn't be left to either the employee to assert that it's unreasonable, by reference to the 326 or for a decision to be made by the Commission, further down the track, that the term has no effect.

PN158

THE COMMISSIONER: Yes, but there's nothing in the statutory scheme, right, that requires me to consider whether or not - well, as far as I can see, there's nothing in the scheme that requires me to consider whether or not a provision, and can we agree on this, clause 51 is a term that is contemplated by section 326, isn't it?

PN159

MR TIERNEY: Yes, Commissioner,

PN160

THE COMMISSIONER: Well, I don't think there's - unlike other, and looking at the context of the legislation, unlike other parts of the legislation where it is quite clear that I cannot approve an agreement that has an unlawful term, and you know that those terms are set out, right of entry, for example, I must deal with that. 326 is not framed that way, 326 says, "Look, if it's doing something that's unreasonable that permits -" well, the key words are, "Has no effect to the extent". So it's not that the whole term has no effect, it has no effect to the extent that it offends (a) or (b), in (1). That seems to me to be the way the legislature intended that we deal with those matters, wouldn't you agree?

PN161

MR TIERNEY: I accept that there's nothing in the scheme that prohibits you from including a term that may offend section 326 to any extent, I accept that. Where it appears that a term is likely to offend section 326, that's a matter that should be given some weight.

PN162

THE COMMISSIONER: That doesn't make any sense to me. What weight and what sense, because there's no power to ask the applicant to do anything about that, is there?

PN163

MR TIERNEY: Well, I accept that, Commissioner.

PN164

THE COMMISSIONER: All right.

PN165

MR TIERNEY: That may go for our next point, Commissioner, which is - so just quickly, Commissioner, the issue of the capacity to relocate employees, this is clause 13 - - -

PN166

THE COMMISSIONER: Of the agreement?

PN167

MR TIERNEY: - - - of the agreement. It has no equivalent in the award.

PN168

THE COMMISSIONER: No.

PN169

MR TIERNEY: What's stated at clause 13.2 is that:

PN170

An employer may reasonably relocate their employees from one location to another, on a permanent or temporary basis, but will first consult with the employee to ensure that such relocation takes into account the employee's personal circumstance.

PN171

It appears that the reference to consult catches in clause 14, the consultation clause, given that it constitutes a significant change.

PN172

THE COMMISSIONER: Yes.

PN173

MR TIERNEY: We say the requirement or the power of the employer to reasonably relocate their employee, having that enshrined in the agreement creates a detriment to the employees, in that, subject to meeting the consultation clause, there's limited capacity for the employee to resist an application for relocation.

PN174

THE COMMISSIONER: Yes.

PN175

MR TIERNEY: Further, in respect of - - -

PN176

THE COMMISSIONER: Related to that there's - tell me if you're going to come to it, there's the travel.

PN177

MR TIERNEY: Yes. So you'll have seen, Commissioner, there are reimbursements and allowances, at clause 19 of the agreement.

PN178

THE COMMISSIONER: That's time off in lieu.

PN179

MR TIERNEY: Yes. If you get to 19.4, 19.5, sorry, of the award.

PN180

THE COMMISSIONER: Of the award, right. Yes.

PN181

MR TIERNEY: So if we go to clause 19.5:

PN182

Where an employer transfers an employee from one township to another, the employee will be responsible for and will pay the whole of the moving expenses, including fares and transport charges.

PN183

This is reflected, in the enterprise agreement, at clause 28, as enabling the employee to be entitled to be reimbursed reasonable travel expenses. We submit, as a contingent financial benefit, the award is superior.

PN184

THE COMMISSIONER: Yes.

PN185

MR TIERNEY: Now, the transport allowance is at clause 19.6 and that provides an employee's entitlement to a payment per kilometre, where required to use their own motor vehicle, in the course of their employment. Again, the answer to that is that they're entitled to reasonable travel expenses. We would submit that, again, the award is superior, the benefit that may be obtained, by reference to clause 19.6(a) of the award, is a superior benefit.

PN186

THE COMMISSIONER: Mm hm.

PN187

MR TIERNEY: Again, clause 19.7, for the same reasons, where an employee commences or ceases work after 10 pm, there's an entitlement for transportation costs, if their usual mode of transport isn't available. Again, we say that reference to reasonable travel expenses being reimbursed is not as beneficial as the potential benefit of the travel allowance at clause 19.7.

PN188

THE COMMISSIONER: Okay. So in terms of 19.7 of the award, the comparator is 28.1(b), is it, in the agreement?

PN189

MR TIERNEY: Yes.

PN190

Commissioner, I think, for the reasons discussed in the context of deductions, this is already answered, but I should also note that clause 15.2 of the agreement relates to the property of the employer.

PN191

Employees are responsible for all loss and damage suffered by the employer, due to wilful acts or negligence on their part, caused during their employment, including loss and damage to property belonging to the employer.

PN192

We would submit that that has a potentially very wide scope to the extent that employees might be responsible for loss and damage for negligence. But, as you say, there's a limit to our power to - - -

PN193

THE COMMISSIONER: Yes, I don't know. That may well fall into the BOOT consideration, I'm not sure. What do you say about that?

PN194

MR TIERNEY: Commissioner, we would say that it's a potentially significantly detrimental term, from the employee's perspective.

PN195

THE COMMISSIONER: There's nothing parallel in the award, is there?

PN196

MR TIERNEY: No. No, there isn't, Commissioner.

PN197

THE COMMISSIONER: No. Okay.

PN198

MR TIERNEY: So, Commissioner, I should state, save for the matters - I understand you canvassed some issues with Mr Pardo during the mention, about things that should - in our position, should no longer be pressed. Those include the reference that was made to the casual allowance not being paid. Obviously we don't rely on that.

PN199

THE COMMISSIONER: It is paid, yes.

PN200

MR TIERNEY: Yes, that's right. We otherwise rely on our written submissions.

PN201

The one other thing that we should raise is that in the context of overtime for a public holiday, if we go to clause 26.1 of the award, provides for the payment of loading, in respect of the - in respect of overtime on a public holiday is more beneficial under the award than under the agreement.

PN202

THE COMMISSIONER: Yes.

PN203

MR TIERNEY: So that's not in our submissions.

PN204

THE COMMISSIONER: Sorry, just take into that the rate of overtime in the award for public holidays, double time. Public holidays is double time and a half, and what have we got in the agreement?

PN205

MR TIERNEY: It's governed by clause 18 and obviously by the wages rate schedule.

PN206

THE COMMISSIONER: So there's public holiday rate for casuals, in 18.4, 275 per cent.

PN207

MR TIERNEY: Yes.

PN208

THE COMMISSIONER: That's okay, isn't it, no issue there?

PN209

MR TIERNEY: Yes. Commissioner, my apologies, there's just one matter that my friend, Mr Pardo, wants to raise with me, I just need a moment to take - - -

PN210

THE COMMISSIONER: Sure. Just while you're doing that, but on this point, I can see 275 per cent for casuals working on a public holiday, I can't see - I can't actually see a rate for part-timers and full-timers.

PN211

MR TIERNEY: It would be in the wage rates - my apologies Commissioner.

PN212

THE COMMISSIONER: Yes, get your instructions and, yes.

PN213

MR TIERNEY: Commissioner, in respect of the overtime, my apologies, Commissioner, the issue is there doesn't appear to be, for part-time or full-time employees, a public holiday rate. What's specified, in clause 18.4, is rates for casuals, casual employees, that the only rate that exists for part-time and full-time employees is set out in clause 18.2, and it doesn't reference public holidays.

PN214

THE COMMISSIONER: What about page 40 of the agreement?

PN215

MR TIERNEY: That's got the 225, yes, I see that.

PN216

THE COMMISSIONER: For permanent employees. I think there's a reference there to full-time and part-time employees, so I think it's probably reasonable to construe that as full-timers and part-timers and not casuals and then we've got a separate list for casuals.

PN217

MR TIERNEY: Yes. I see that, Commissioner.

PN218

So, Commissioner, at clause 26.1 of the award it says that:

PN219

Public holidays for full-time and part-time employees shall be time and a half and on public holidays shall be paid at the rate of double time and a half.

PN220

THE COMMISSIONER: Okay. Whereas this is double time and a quarter.

PN221

MR TIERNEY: Yes.

PN222

THE COMMISSIONER: Yes. I see the point.

PN223

MR TIERNEY: Commissioner, on time off in lieu, which is at clause 19 of the agreement - - -

PN224

THE COMMISSIONER: So the same follows for casuals then, doesn't it, because factoring in the 25 per cent loading for casuals - - -

PN225

MR TIERNEY: Yes.

PN226

THE COMMISSIONER: Yes. Okay. Sorry, go on?

PN227

MR TIERNEY: So, Commissioner, at clause 19 of the enterprise agreement it deals with time off in lieu. Under the award it's said that it should be at the penalty equivalent, at 26.5(b).

PN228

THE COMMISSIONER: Of the award?

PN229

MR TIERNEY: Yes.

PN230

THE COMMISSIONER: Yes.

PN231

MR TIERNEY: Quoting:

PN232

The period of time off that an employee is entitled to take is equivalent to the overtime payment that would have been made. So that payment should be made by reference to the overtime rate.

PN233

THE COMMISSIONER: You've lost me there. Isn't that the same?

PN234

MR TIERNEY: It says, "It's payable at the overtime rate", but it doesn't say it has to be taken at the overtime rate.

PN235

THE COMMISSIONER: It's all about payment, I see. Okay. Yes?

PN236

MR TIERNEY: Commissioner, may I allow my friend, Mr Pardo, do address you on one further point?

PN237

THE COMMISSIONER: Sure.

PN238

MR PRADO: May it please the Commission. Just regarding a couple of points that I'll go through quickly, for the sake of efficiency. At 25.2(b) of the Fast Food Industry Award - - -

PN239

THE COMMISSIONER: So 25?

PN240

MR PRADO: Point 2(b), of the Fast Food Industry Award, the award provides that, "All hours will be continuous, exclusive of breaks."

PN241

THE COMMISSIONER: Yes.

PN242

MR PRADO: That's not replicated in the agreement and we submit that would allow, whether advertently or inadvertently, for employees to be engaged on multiple engagements in one day.

PN243

THE COMMISSIONER: Like a split shift?

PN244

MR PRADO: Exactly, Commissioner. We raise that as a BOOT issue because, as the Commission would be on notice, that's only acceptable if all the hours paid in between the two split shifts are paid. This would have been brought to the Commissioner's attention in other enterprise agreements in the retail and fast food sector.

PN245

THE COMMISSIONER: Yes.

PN246

MR PRADO: If I might craft the Commission's indulgence just for two quick points and then I'll return you to my learned friend.

PN247

THE COMMISSIONER: Yes.

PN248

MR PRADO: I don't with to belabour the point of annual leave, but I think we accept that it is at the value of 1.3 per cent, that that 1.3 per cent only takes into account the 17.5 per cent annual leave loading. The award provides for:

PN249

All the relevant weekend penalty rates, whichever is greater, but not both.

PN250

And that would provide for, we submit, for those employees who work, primarily, on weekends, a further financial detriment, compared to the award.

PN251

THE COMMISSIONER: Yes, maybe, maybe not.

PN252

MR PRADO: We make that submission to the Commission.

PN253

THE COMMISSIONER: Yes.

PN254

MR PRADO: At meal breaks, clause 27(a) of the award, a second meal break - the Fast Food Industry Award is unique in that it says:

PN255

One or two meal breaks when you work nine hours or more.

PN256

THE COMMISSIONER: Sorry, where am I now?

PN257

MR PRADO: At clause 27(a) of the Fast Food - - -

PN258

THE COMMISSIONER: 27.1 of the award?

PN259

MR PRADO: Pardon me, Commissioner?

PN260

THE COMMISSIONER: 27.1 of the award?

PN261

MR PRADO: Yes, Commissioner, in the breaks table.

PN262

THE COMMISSIONER: Yes.

PN263

MR PRADO: It's unique in that at nine hours or more it specifies that one or two unpaid meal breaks accrue and that there's no option for that second meal break in the agreement. I refer back to my learned friend.

PN264

THE COMMISSIONER: So where's the – the nine hours or more provision you're taking me to, yes?

PN265

MR TIERNEY: Yes, Commissioner.

PN266

THE COMMISSIONER: Yes. And this agreement allows for 11 hours in the day from recollection so that would probably be relevant; 27.1. And you say that's not provided for in the agreement at all the second break.

PN267

MR TIERNEY: Yes. At clause 17.1 it just says:

PN268

For nine hours and over two 10‑minute paid rest breaks and one 30‑minute unpaid meal break.

PN269

We don't go to the quantum. The quantum is 30 to 60 in the award but there's no option for the additional second unpaid meal break.

PN270

THE COMMISSIONER: Yes. Understood.

PN271

MR TIERNEY: May it please the Commission.

PN272

THE COMMISSIONER: Thank you.

PN273

MR PARDO: Sorry, Commissioner, just to clarify, those are the submissions of the SDA.

PN274

THE COMMISSIONER: All right.

PN275

MR PARDO: And for those reasons we say.

PN276

THE COMMISSIONER: Thank you.

PN277

MR MINUCCI: If the Commission pleases. Now, I note that some of those matters have never been raised before so I'll do my best to try and deal with them. The first point which ii would propose to make which the Commission's made, is that the approval application and any assessment of the contents of an agreement must be made in light of the statutory scheme in which we are operating such that – and I'll say it once and we probably don't have to labour the point, but a stream can't rise higher than its source.

PN278

So to the extent that the agreement requires the mandatory provisions in 185 through to about 187 of the Act of the Commission to consider various things as part of the approval process, this issue about 324 or 325 is completely irrelevant such that the Act contemplates that if the agreements meet the relevant statutory scheme as the Commission's already noted, it gets approved and then if there is an issue that is raised at some stage, whether it's for declaratory relief or a dispute under the relevant provisions, that's when those sections are enlivened and the Commission's made that point and we simply press it.

PN279

But that the stream can't rise higher than its source argument needs to be borne in mind when considering these supposed benefits or detriments. Now, I can deal with the leave loading. Fact is, it's incorporated into the relevant break and I don't need to say anything more about it.

PN280

Now, dealing then with the question of the allowances, if I may. Sorry, I withdraw that. What I might do, Commissioner, if it's easier is that it may be that there are a number of matters that need to be raised by reference to the written documents and the written documents provided by the applicant and the SDA identify particular item numbers which deal with the matters that my friends canvassed and what I might do is I might just take the Commission through by reference to those numbers.

PN281

Now, the first part before we get to that is that the evidence upon which the Commission can rely for the purposes of approving the process are the matters that are contained in the (indistinct). There should be no regard to any alternative calculations or speculation about particular aspects of various things in circumstances where there's been no evidence put on by the Union. Now ‑ ‑ ‑

PN282

THE COMMISSIONER: You'd agree that the appropriate course for me to follow is consistent with the observations of the five member Full Bench in the loaded rates case is to consider what the terms of the agreement permit rather than any other consideration.

PN283

MR MINUCCI: Correct.

PN284

THE COMMISSIONER: Yes.

PN285

MR MINUCCI: Now, I can deal with the – which is the location and transfer which deals with clause 13 in the Enterprise Agreement. Now, what clause 13 does is that it allows an employer to direct an employee to perform work at a particular location on a permanent or a temporary basis, (1) if it's reasonable and (2) after a period of consultation.

PN286

Now, that there is something that doesn't exist in the award because the award only permits consultation in relation to major change, substantial effect on employees, plural, it's not about individuals whereas what clause 13 does is it contemplates expressly that an individual in those circumstances would receive consultation and that individual would have recourse to the Commission under the relevant disputes procedure if it was not, in their view, reasonable. So in my ‑ ‑ ‑

PN287

THE COMMISSIONER: But you're not submitting that the major change provision is – doesn't apply to a singular employee.

PN288

MR MINUCCI: Well, there an argument that the fact that you're on a reasonable – that is a on a singular basis under the award, if you've got to go one day to go over here, that's not a major change.

PN289

THE COMMISSIONER: That's a different point to the one I'm making. I thought you were saying that the consultation clause derived from the TCR case is – only applies to collectives of employees.

PN290

MR MINUCCI: No, no, no. No, that's not what I'm – sorry. That might have been an infelicitous expression but it's certainly in relation to the major change aspect of it.

PN291

THE COMMISSIONER: Yes. Sure. Including the need to relocate.

PN292

MR MINUCCI: Correct. And certainly, in my submission, clause 13 of the instrument is neutral at worst and arguably a benefit given that it gives the employee the ability to object on reasonableness grounds and/or engage in consultation in respect of that matter. Now, the ‑ ‑ ‑

PN293

THE COMMISSIONER: Where's the objection point?

PN294

MR MINUCCI: Well, in and of its terms in the sense that the – clause 13 says, "Can't be done if it's unreasonable", is essentially what's implicit in the language of clause 13.2.

PN295

THE COMMISSIONER: Well, yes. It's not explicit though. There's no explicit objection right.

PN296

MR MINUCCI: No, but ‑ ‑ ‑

PN297

THE COMMISSIONER: It just says:

PN298

The employer may reasonably –

PN299

- another way – I must say another way of reading that on the ordinary meaning is the employer may reasonably relocate their employees as in it will always be reasonable is another way of doing it.

PN300

MR MINUCCI: With the greatest of respect, in terms of the way that the Commission has approached various decisions and constructions of clauses of this kind there is no way that that clause will be interpreted to mean that. It's quite clear that that reasonable relocation ‑ ‑ ‑

PN301

THE COMMISSIONER: I agree with you if it said an employer may relocate their employees from one location to another provided the relocation is reasonable.

PN302

MR MINUCCI: Yes.

PN303

THE COMMISSIONER: It doesn't say that.

PN304

MR MINUCCI: It doesn't.

PN305

THE COMMISSIONER: That would be clear.

PN306

MR MINUCCI: That's clear but with the greatest of respect, that language taking into account what the authorities say about infelicitous drafting of enterprise instruments ‑ ‑ ‑

PN307

THE COMMISSIONER: It's at least ambiguous, isn't it, in regard ‑ ‑ ‑

PN308

MR MINUCCI: Well, I would say it's not but to the extent that it is, in my submission, there is only one way that that would be interpreted by reference to that provision coupled with its reference to the consultation clause.

PN309

THE COMMISSIONER: Yes.

PN310

MR MINUCCI: Now, in respect of items 2 and 31 through 34 that have been raised in the submissions, these are about the annual leave provisions. Now, the provision as I've mentioned about leave loading, that's been dealt with and if I can deal with item 32 which has been raised about the cashing out of annual leave, that's submitted that it's a detriment. In my submission, it's not.

PN311

It's at best neutral arguably of benefit in particular circumstances and it's something that the Act expressly contemplates as would be included in the industrial instrument. If the Commission can refer to section 93.

PN312

In respect of item 33 as set out on page 40 of the agreement in response to 34, there are - and this applies to a number of the matters outlined in the written submissions so I won't labour it but the suggestion that this industrial instrument has to replicate provisions of the Act or replicate provisions of the award in circumstances where they're mirrored in the legislation for some reason or another, should be rejected.

PN313

THE COMMISSIONER: Is this the superannuation point?

PN314

MR MINUCCI: No, no, no. This is not – we haven't got there yet. This is – it needs to be included as a matter of clarity because the award says what the Act says which just means that the instrument has to say what the award says which says what the Act says. So for example, the NES point because there's nothing in the agreement says that the provisions are going to be interpreted in accordance with the NES.

PN315

THE COMMISSIONER: Can we not – I mean, let's not make the agreement approval process any more complicated than it needs to be. It's a matter of testing it against the award. If the award has a provision and this agreement doesn't, it's relevant, isn't it?

PN316

MR MINUCCI: Well, in my submission, not necessarily because ‑ ‑ ‑

PN317

THE COMMISSIONER: And because one reason that's immediately evident is that if the argument is, "Well, it's in another statutory provision", and they can run off and enforce it under those provisions, well, that's not as accessible as enforcing an agreement where they've got access to dispute resolution procedure and so on. They won't have access to any of that, will they?

PN318

MR MINUCCI: Well, it depends on the particular circumstances.

PN319

THE COMMISSIONER: Well, no. Well, let's go to the dispute please. So the disputes only arise out of the terms of the agreement or in relation to the NES. So it's not in the agreement and it's not in the NES.

PN320

MR MINUCCI: Well, but that's precisely my point.

PN321

THE COMMISSIONER: Right.

PN322

MR MINUCCI: To the extent that anything's in relation to the NES that is ‑ ‑ ‑

PN323

THE COMMISSIONER: Sure. No doubt.

PN324

MR MINUCCI: That's in the award but it might find its way into here, for example, that is not going to scupper the approval process because the dispute rest clause allows the NES obligations to be enforced through that process.

PN325

THE COMMISSIONER: Yes. But this is about matters that are not in the NES, they're in the Award, isn't it? Isn't that the point the SDA is making?

PN326

MR MINUCCI: Well, in parts but in some parts of their written submission they've also said, "Well, the clause doesn't" – the agreement, as I recall – I think it's about item 5 or something like that in their submissions where they say, "The Enterprise Agreement doesn't have a provision that says that this award will be interpreted – this Enterprise Agreement will be interpreted in accordance with the provisions of the NES and therefore that's a detriment", while ‑ ‑ ‑

PN327

THE COMMISSIONER: Yes, I don't – well, to save you time, I don't agree with that submission but I'm not with you on, you know, the notion that because something's in an act somewhere that might be true but if it's not – if it's in the award and it's not in the agreement it's relevant.

PN328

MR MINUCCI: And I should say too in – and maybe I'm wrong but I anticipate the Commission's referring expressly to - for example, as to the superannuation provision. Now, I'd accept that in relation to that and I'll get to that in a moment. Now, in relation to the deductions provision at clause 51 of the agreement.

PN329

THE COMMISSIONER: Yes.

PN330

MR MINUCCI: It on one view permits the employer to deduct various sums from wages or entitlements and that's subject to written authorisation. So if there's no consent there's no ability to deduct and as the Commission rightly had a discussion with my friend, we've then got sections 324 and 326 that add the extra protection in relation to clauses of that kind.

PN331

And I should note too at clause 14.1 of the award also permits deductions of one week of an employee's entitlements. Now ‑ ‑ ‑

PN332

THE COMMISSIONER: Which clause?

PN333

MR MINUCCI: 14.1.

PN334

THE COMMISSIONER: In the agreement?

PN335

MR MINUCCI: The award at 14.1(d).

PN336

THE COMMISSIONER: Yes, I just make that important distinction there. That was a deduction from wages. Your clause – your client's clause enables – permits deductions from annual leave.

PN337

MR MINUCCI: That's ‑ ‑ ‑

PN338

THE COMMISSIONER: I think that's an NES issue.

PN339

MR MINUCCI: I'll take a moment to think about that, Commissioner.

PN340

THE COMMISSIONER: Yes.

PN341

MR MINUCCI: I might just come back to that if I may. And to the extent that it does just as our initial view to the extent that it does it would be invalid anyway, to the extent that it's inconsistent with the NES it would be ‑ ‑ ‑

PN342

THE COMMISSIONER: Yes. But that was a concern for me that if it's not satisfied I won't approve.

PN343

MR MINUCCI: Yes. No, I understand. Now, actually I might change tack and just have a look at that now as the Commission's brought it to my attention. It does contemplate that.

PN344

THE COMMISSIONER: You might have to have a look at that in the break because really what you're going to be to look at now I can see you're into the ‑ ‑ ‑

PN345

MR MINUCCI: The annual leave deduction provisions.

PN346

THE COMMISSIONER: It's really about the inalienable right to be provided your annual leave on termination.

PN347

MR MINUCCI: That's right. So I might take a moment then, Commissioner, if that's all right, to deal with that.

PN348

THE COMMISSIONER: Yes.

PN349

MR MINUCCI: Now, dealing with the consultation clause which are items 7 and 8 which as a starting position simply because the consultation provision in the Enterprise Agreement is different to award is not – doesn't necessarily mean that it's worse for an employee. Section 205 of the Act mandates that an agreement must include a consultation term about major change, change to roster and have a right to representation and clause 14 of the agreement certainly contemplates precisely what the Act ‑ ‑ ‑

PN350

THE COMMISSIONER: Those things. Yes. I haven't raised any issue with the consultation clause not complying with 205, have I?

PN351

MR MINUCCI: No. No, as I understand items 7 and 8 that were raised in the written outline seemed to suggest it but I just wanted to make it clear that we say that there's no issue with the relevant consultation clause.

PN352

THE COMMISSIONER: Yes. I don't think much turns on that point.

PN353

MR MINUCCI: The next matter, as I understand it that's relevant is the issue of this mediator. Again, we'd certainly refer to our written outline material at item 9 of our submissions of 2 August 2019 and I won't press any of that further today. Now, there was some discussion in the written material at item 10 about part‑time employees.

PN354

THE COMMISSIONER: Sorry, just on the mediator.

PN355

MR MINUCCI: Yes.

PN356

THE COMMISSIONER: Who does pay for it?

PN357

MR MINUCCI: I would - I don't – I have to get some instructions but ‑ ‑ ‑

PN358

THE COMMISSIONER: Well, you don't – there's no point getting instructions it's what does it mean.

PN359

MR MINUCCI: What does it mean?

PN360

THE COMMISSIONER: There's no evidence in this matter. No.

PN361

MR MINUCCI: No, there's no evidence about it, it's a question of construction.

PN362

THE COMMISSIONER: So what does it mean? It's a simple point. I'm having a dispute with my Subway employer and so let's go to mediation, the employer says, "Yes. I found someone they cost a thousand dollars a day."

PN363

MR MINUCCI: Yes, $20,000 a day.

PN364

THE COMMISSIONER: Yes, or $20,000 a day when we get some individuals, I won't go naming people but – and where's your share of that?

PN365

MR MINUCCI: I think that's best for all of us if you don't. I think it's best, Commissioner, if you don't. I'm just turning the relevant clause up. Now, the clause in and of itself contemplates that the independent mediator requires agreement. So look at 6.3. So it may be referred to "An agreed private independent mediator for mediation." So in the circumstances let's assume for the moment that we're talking about a split of 50/50. Let's assume that that's the case between an employee and employer for the purposes of the mediation. If the employer said to the employee, "Guess what, we've got X QC coming in to mediate at $20,000 a day." I know precisely what that employee would say in respect of that proposition and it means that mediation doesn't go ahead.

PN366

THE COMMISSIONER: Well, you don't know what they'll say.

PN367

MR MINUCCI: I can anticipate then what they'd say given the age of these individuals.

PN368

THE COMMISSIONER: Some 18‑year‑old sandwich artist may well have a heart attack in response to this proposition. I mean, that's, I think, in all seriousness this is what the SDA is going to but the short point from you is because it's agreed then there's the power to not agree and then you end up here.

PN369

MR MINUCCI: End up here anyway.

PN370

THE COMMISSIONER: Whether with arguably the same level of – well, save for the small, slight point about it referring only a power of mediation as opposed to conciliation, whatever that means, or private arbitration which is consistent with the award.

PN371

MR MINUCCI: Correct.

PN372

THE COMMISSIONER: That's the – yes. All right. I understand that.

PN373

MR MINUCCI: In terms of the part‑time employee's issue, at 7.2(d) of the agreement it doesn't prescriptively define the matter that must be set out in any written agreement and that's obviously in contrast to the award at clause 12.2 but what should also be noted is it doesn't mean that those matters can't or shouldn't or wouldn't be included in any part‑time agreement arrangement.

PN374

What it simply does at clause 7.2(d), in my submission, is that it simply creates a level of flexibility in relation to the terms of what written instrument may or may not be required. Now, arguably, as we've set out in our written submissions it might be advantage for some because they might like, given their age or the nature of their work or their study or whatever else it might be, some inherent flexibility with the nature of what's included as part of the terms of any part‑time agreement.

PN375

THE COMMISSIONER: Yes. Well, be careful about you starting to give evidence from the Bar table. I don't know what – I don't know how any of that's going to work out. What I've got is 12.2 of the award which provides a prescription that at the time one is employed the employer and the part‑time employee must – well, the word, "Must" isn't there but it says:

PN376

Will –

PN377

- equally strong and mandatory –

PN378

- agree in writing on a regular pattern of work specifying those things that are set out in the dot points.

PN379

And this agreement doesn't have any of those things, does it? It has in substitution that they'd agree – sorry, I'll withdraw that. It has a requirement to:

PN380

Agree in writing but only on a reasonably regular pattern of work -

PN381

- whatever that means –

PN382

- including the ordinary hours to be worked per week.

PN383

So it's significantly more flexible than the provisions in clause 12.2 of the award, you'd agree?

PN384

MR MINUCCI: Yes.

PN385

THE COMMISSIONER: Yes.

PN386

MR MINUCCI: I'm not shying from that. I shouldn't say that I'm not shying away from that level of flexibility but simply because there's flexibility doesn't make it a detriment, doesn't make it a disadvantage necessarily is all I'm saying in that circumstances because simply because you're comparing a clause in each and one doesn't match to the other doesn't necessarily mean ‑ ‑ ‑

PN387

THE COMMISSIONER: Yes. Remember you're comparing a safety net, the award, with an agreement.

PN388

MR MINUCCI: I accept that.

PN389

THE COMMISSIONER: And you'd agree that's the approach that I need to look at, whether or not, you know, the question is really whether the lack of that specificity that's in 12.2 in the safety net not being replicated in the agreement is a detriment or not. You say it's not a detriment it's in fact an advantage.

PN390

MR MINUCCI: No, I don't put it that it is in fact an advantage.

PN391

THE COMMISSIONER: No. Right.

PN392

MR MINUCCI: I would say that it's at best neutral in the sense ‑ ‑ ‑

PN393

THE COMMISSIONER: It's at best neutral.

PN394

MR MINUCCI: Sorry, at worst neutral and possibly an advantage in the sense that there may be situations that the Commission could envisage where that's a disadvantage. There may be situations that the Commission could envisage as a matter of practice could be an advantage and it cuts both ways, in my submission, such that certainly 7.2(d) of the agreement captures the relevant intrinsic value of part‑time employment, certainly at that level and doesn't undermine that in any way and certainly in my submission, shouldn't scupper the approval of this agreement.

PN395

Now, I can deal with the meal allowance. The meal allowances that have been raised by my friend. We've given the relevant undertaking that the Commission has noted but in assessing this part of the clause that contemplates more than one day. That must be balanced against the nature of the loaded rate that has been provided as part of the current calculations because in my submission, what that language tends to suggest – well, I withdraw that.

PN396

If the Commission notes that that's only available on one day - sorry, more than one day, that means that it would, in my submission, be logical to suggest that that then goes, "Okay. So there's one day where they're not entitled to a meal allowance." In my submission, that fact can be offset and is offset in this case by reference to the wage rates and they are loaded wage rates, in my submission.

PN397

THE COMMISSIONER: Yes. That's one of the things that you're purchasing as it were, with your, at the lowest, .68 per cent.

PN398

MR MINUCCI: Correct. And is included in the background document that the Commission has noted expressly. So then we move to the travel allowances – sorry, I withdraw that. Firstly deal with the cold work and the broken hill allowance. In my submission, yes, they don't appear in this instrument but we're not talking about any matters where they are going to be an issue and in relation to the cold work allowance, the language of the award here is relevant because what the language of the award expressly notes in relation to that allowance, it says, clause 19 as I recall is the allowance provision, 19.8 at (a):

PN399

Its employees principally employed on a particular day.

PN400

So there's nothing in this instrument that contemplates an employee being principally employed on a particular day to do work that would attract that allowance. And the broken hill allowance, in my submission, has no work to do for the ‑ ‑ ‑

PN401

THE COMMISSIONER: So in other words your construction on 19.8(a) is that if it's not principally part of what they're doing it's, you know, they might occasionally jump into the fridge to ‑ ‑ ‑

PN402

MR MINUCCI: To grab a box of lettuce, for example, for the sandwich ‑ ‑ ‑

PN403

THE COMMISSIONER: Yes. That's not attracted the – if you were under the award that wouldn't attract 19.8(a) it's for people who are working in the fridge a lot.

PN404

MR MINUCCI: That's right. So for the people who might be unloading the refrigerator truck that then put it into the refrigerated fridge, et cetera.

PN405

THE COMMISSIONER: Yes. Yes.

PN406

MR MINUCCI: Then dealing with the travel allowances, and this is the comparison as I understand it they're items 15 through 19 of the submission documents but it's really principally concerning clause 28 of the instrument. Now, what clause 28 of the instrument does, and I'm sure arguably is that it provides for a broader suite of circumstances on its face where allowances might be attracted so it doesn't mandate the language of the award in respect of the allowances provides specific and relative allowances in certain defined circumstances only.

PN407

What this clause does, in my submission, is that it goes further. It goes further than that by not mandating and simply saying that they're reasonable, it imports a broad discretion and imports a broad ability for an employee to claim particular references of those allowances.

PN408

THE COMMISSIONER: The discretion was with the employer, you would you agree?

PN409

MR MINUCCI: At first instance, yes, but certainly, for example, if a particular allowance was claimed by an employee and they wanted to raise a dispute about that and it came to the Commission for mediation and/or arbitration, the Commission would by reference to the words of that section, have the ability to determine whether or not the claim for the particular allowance was reasonable and the Commission may order the particular payment of that allowance in those circumstances.

PN410

THE COMMISSIONER: Only if the employer's previously authorised them.

PN411

MR MINUCCI: Well ‑ ‑ ‑

PN412

THE COMMISSIONER: That stands as a barrier to it having any work to do.

PN413

MR MINUCCI: Yes. I accept that.

PN414

THE COMMISSIONER: It's open to the employer to just not authorise it and not pay a cent. That'd be true?

PN415

MR MINUCCI: Yes. Accept that.

PN416

THE COMMISSIONER: Yes.

PN417

MR MINUCCI: There was a reference to, in the written submissions at item 22, to a particular provision in the award that talked about, as I recall it – it's 19.10 of the award that talks about the adjustments of the allowances provision. Now, to that end I'd submit it has no work to do for the purposes of the boot analysis and I say that because what that clause does on its face from the award is contingent upon two things. That clause is contingent upon (1) a change to the CPI and (2) an adjustment to the relevant minimum weekly wage rate.

PN418

THE COMMISSIONER: Sorry, I was just looking at something else so I'm not ‑ ‑ ‑

PN419

MR MINUCCI: Sorry, Commissioner.

PN420

THE COMMISSIONER: I lost my track there.

PN421

MR MINUCCI: No.

PN422

THE COMMISSIONER: Just go back to where you were.

PN423

MR MINUCCI: No, if there's something that the Commission was looking at that I can – that it was considering ‑ ‑ ‑

PN424

THE COMMISSIONER: No, no, no. I was just still hanging onto a last point. What – where are we now?

PN425

MR MINUCCI: So 19.10 of the award.

PN426

THE COMMISSIONER: 10 of the – clause 10 of the award, yes. Employment categories.

PN427

MR MINUCCI: No, 19.10. Sorry, my apologies. 19.10 of the award at page 21.

PN428

THE COMMISSIONER: Yes.

PN429

MR MINUCCI: So it talks about the adjustment of expenses related.

PN430

THE COMMISSIONER: Yes.

PN431

MR MINUCCI: Now, that provision, in my submission, whilst raised by my friends in their written arguments, doesn't have any work to do for the boot and I say that for two reasons, (1) is that the – or the two reasons are that that clause in the award is contingent upon two things, (1) adjustment to the CPI and (2) an adjustment to the minimum weekly wage rate. Now, it appears or it can be inferred from my friend's written submission that it's a detriment because it assumes CPI goes up and it assumes that the minimum wage rate goes up every time the Commission reviews it. Now, to that ‑ ‑ ‑

PN432

THE COMMISSIONER: Not while the controversial predictions – I recall one and zero increase under the auspices of the Australian Fair Pay Commission.

PN433

MR MINUCCI: And that may well be true, however, the loaded rates case at a 110 talks about the assessment at test time.

PN434

THE COMMISSIONER: Yes. Sure.

PN435

MR MINUCCI: And we're talking about you can – so in making that assessment we're talking about it at a fixed point in time and we're not talking about future increases or speculation on future increases because that would make it almost impossible for agreements to be approved. Now, also ‑ ‑ ‑

PN436

THE COMMISSIONER: Am I required to engage in that practice? Aren't I simply looking at whether or not there's a capacity in the safety net to guarantee that they will get adjustments if they're required because CPI has amazingly gone up or there's been increases in the – well, minimum wage to a certain extent is taken care of by 206 so let's forget about that.

PN437

This is just about the expense related allowances, as opposed to the agreement where there is no mechanism, it's just a – one's got a mechanism and one hasn't. It doesn't matter, I don't have to speculate about whether it's going up or not at test time, I know the safety net's got a mechanism and your agreement doesn't. Simple as that, isn't it?

PN438

MR MINUCCI: I accept that save for there is a provision in the agreement that needs to be considered as part of that analysis which is – so it's one of a number of them but certainly in respect of the wage increase, let's deal with that at the very least, this is 25.1 of the instrument that contemplates the shifting of the wage percentage at the least.

PN439

THE COMMISSIONER: Yes.

PN440

MR MINUCCI: And then in terms of the expenses, I would have to accept that that leads to the existence or nonexistence of a possibility of them changing doesn't occur in the instrument but is something that has to be weighed against, for example, the loaded rates and the other contingent benefits as part of the overall analysis that the Commission has to undertake.

PN441

THE COMMISSIONER: Yes.

PN442

MR MINUCCI: So the – turning now to superannuation as I know that that is something that the Commission has been considering, in terms of the ordinary superannuation requirements under the award, those matters are dealt with under the relevant common law legislation. We're obligated to do that anyway. That's the first part. It's the part that is not there that is clause 21.5(b) in relation to the injuries. That's the part that's not in the instrument, in my submission, the relevant part.

PN443

Now, I would accept that on its face that that is a detriment but, in my submission, it's offset in the overall boot analysis by a number of things including loaded rates, the mixed functions clause in 11.3 of the instrument, study leave at clause 40, for example, uncapped jury service, annual wage increases in 25.1, et cetera, et cetera. So it is something that has to be considered but I would say is not enough to scupper the deal because of the very contingent and specific circumstances in which that superannuation payment would be made.

PN444

Now, alternatively – sorry, I withdraw that. Now, this submission in relation to super and also in relation to other matters, I would also submit to the Commission that the employers, that is my client and the multiemployers to the extent that the Commission finds that there are any gaps or to the extent that the Commission finds that there are matters that need to be dealt with by way of undertaking, I would respectfully request the opportunity to do so because, simply hypothesising but, for example, something like this in relation to the superannuation clause may be able to dealt with by an undertaking.

PN445

I don't have those instructions now but it will be simply depending upon what the Commission finds and what matters the Commission might or might not be troubled by.

PN446

THE COMMISSIONER: Yes.

PN447

MR MINUCCI: I would certainly request that opportunity to deal with it in that way such that the agreement is not fundamentally – the application to approve is not fundamentally dismissed in the absence of that opportunity.

PN448

THE COMMISSIONER: Sure. I intend to come to how we progress matters from here once we've concluded submissions but I hear that.

PN449

MR MINUCCI: Then we get to item 24 of the written document. It talks about the payment of wages, seven days on termination compared to 14. In my submission, this is a small detriment if it is one at all and inconsequential in the scheme of things because if, for example – sorry, withdraw that.

PN450

Clause 23.1 of the instrument contemplates payment on a fortnightly basis. So if termination falls within a particular part of the payment cycle they're going to get payment in any event by reference to clause 23.1. So if it falls on the last day of the payment cycle, a termination, they'll get paid the next day, for example, by reference to the payment structure such that that means that, yes, the maximum they'll have to wait is 14 days in particular circumstances but it might and is likely to be less in those circumstances such that it's not a detriment that should have any significant weight in the Commission's considerations.

PN451

Now, there's, I understand that in the reply submissions that SDA doesn't take issue with item 25 which is the training wage. Item 26 which deals with ordinary hours. They relate to clauses 25.1 and 2 of the award not being included. Now, clause 25.1 has no relevance to the boot and 25.2 of the award is mirrored in clause 7.1(a)(i) of the instrument. In relation to 38‑hour per week rosters I'll refer to clauses 7.1 and 2 of the instrument and there's no tangible benefit identified.

PN452

Now, in relation to overtime, this I will take the Commission through just briefly the structure of the way in which overtime is paid under the instrument. If the Commission can turn to clause 18 which deals with overtime. So the overtime for permanent employees starts at 18.1 and it provides when that overtime is to be paid. Now, for permanent employees overtime needs to be authorised by the employer.

PN453

Then get - going into the rates for overtime for the permanent and the part‑time individuals and they're paid in accordance with that table. So for overtime in excess of two hours in a shift, for example, or overtime on a Sunday, they get 200 per cent of their ordinary wage rate.

PN454

THE COMMISSIONER: Yes.

PN455

MR MINUCCI: What the provision doesn't do is expressly contemplate a wage rate for public holidays. It does do so for casual employees, over the page at 18.3 and 18.4.

PN456

THE COMMISSIONER: Yes.

PN457

MR MINUCCI: Again, I would say it shouldn't in the whole scheme of things mean that it doesn't pass the boot, however it is one of those matters that again may be able to be dealt with by our undertaking if need be, for example, an undertaking might say that the employer undertakes not to roster individuals for overtime on public holidays. That would, in my submission, deal with that.

PN458

THE COMMISSIONER: Well, that would not be accepted.

PN459

MR MINUCCI: Sorry?

PN460

THE COMMISSIONER: That wouldn't be accepted.

PN461

MR MINUCCI: Sorry, Commissioner, I don't understand.

PN462

THE COMMISSIONER: An undertaking of that nature would not be accepted.

PN463

MR MINUCCI: On what basis, may I inquire, in relation to the undertaking?

PN464

THE COMMISSIONER: It would be detrimental.

PN465

MR MINUCCI: Sorry?

PN466

THE COMMISSIONER: Detrimental and/or substantially changing the agreement. If you look at the explanatory memorandum where it talks about section 190 it makes actually – it provides a particular example of an agreement where there's, you know, something – I don't quote directly from it but from recollection, now, no penalty is paid on the weekend.

PN467

It makes it pretty clear you can't deal with that by saying, "Well, I'm not going to work on weekends", because people may well have voted for the agreement contemplating that they would work on weekends. So to the extent that you are contemplating dealing with that by saying, "I don't want to work – won't be rostered to work on public holidays", that's not an answer.

PN468

MR MINUCCI: Yes. If the Commission please. I hear what the Commission says in relation to that.

PN469

THE COMMISSIONER: Yes. But again, we'll come back to the contemplation of undertakings and how we'll deal with that at the conclusion of proceedings but can I just get clear then what's the concession in terms of public holidays that ‑ ‑ ‑

PN470

MR MINUCCI: So there's no express rate provided in the instrument that identifies a public holiday overtime rate.

PN471

THE COMMISSIONER: Yes.

PN472

MR MINUCCI: So it, as I read the instrument, it would be subject to the rates in 18.2. Any overtime that's worked on a particular day is by reference to those rates.

PN473

THE COMMISSIONER: For part‑timers and casuals but not for ‑ ‑ ‑

PN474

MR MINUCCI: Sorry, for part‑time and fulltime.

PN475

THE COMMISSIONER: Sorry. Yes.

PN476

MR MINUCCI: Not for casuals.

PN477

THE COMMISSIONER: Yes.

PN478

MR MINUCCI: Because the casuals get the benefit of a 275 per cent increase which is more than the award, as I read it, on 18.4.

PN479

THE COMMISSIONER: But then ‑ ‑ ‑

PN480

MR MINUCCI: Or sorry, the same as rather.

PN481

THE COMMISSIONER: How do we – what do I make of the rates – yes, in page 40 because you've got 250 per cent there for casuals on public holidays but not overtime rates.

PN482

MR MINUCCI: Correct.

PN483

THE COMMISSIONER: Right. Yes. Now – and just going back to that scale on page 40 is it conceded that the public holiday rate is less – 25 per cent less than the award when it's not overtime?

PN484

MR MINUCCI: I just might turn that up, Commissioner, before I make any concession in relation to it.

PN485

THE COMMISSIONER: No, no. Don't make concessions if they're not to be made.

PN486

MR MINUCCI: I'm not making any unless I've looked at it.

PN487

THE COMMISSIONER: Which clause in the award should I be looking at?

PN488

MR MINUCCI: As I understand it, it's 26 is overtime.

PN489

THE COMMISSIONER: Yes.

PN490

MR MINUCCI: But interestingly as I look at this instrument – or sorry, as I look at the award, I can't identify on the face a penalty rate for public holidays.

PN491

MR PARDO: In 6.1(a) of the ‑ ‑ ‑

PN492

MR MINUCCI: No, it's only – that's overtime so it's not about – so it might not be that an individual is working overtime on a public holiday. So that doesn't apply. It's - public holidays are in clause 30 and it's paid at the rate of 225 per cent for individuals which is the same as a permanent employee in the schedule of the minimum wage rates and it's the same for a casual. So 30.3 of the award is replicated in the minimum wage rate schedule at page 40 of the instrument.

PN493

THE COMMISSIONER: Yes. Yes. Got that. So the gap is part‑timers and casuals, there's no rate for overtime work on public holidays.

PN494

MR MINUCCI: Public holiday overtime.

PN495

THE COMMISSIONER: Yes.

PN496

MR MINUCCI: And so the gap, sorry, Commissioner, to be clear, that only relates to fulltime and part‑time employees.

PN497

THE COMMISSIONER: Yes. Yes, got it.

PN498

MR MINUCCI: I just want to make sure I've addressed everything raised by my learned friend. The breaks provision, the way that clause 27.1 of the award reads on its face is that it's at the discretion of the employer as to whether or not one or two meal breaks are provided at the relevant point in time.

PN499

So to the extent that the agreement deals with breaks, I would refer the Commission to paragraphs 34 and 35 of our submissions dated 12 August 2019 and in any event we would say clause 17 of the agreement deals with the question of breaks appropriately.

PN500

THE COMMISSIONER: You may have to remind me what you said in your submissions but do they deal with this issue about – again, but the award entitlement is you get two rest breaks unless a second meal break's provided. That's the ‑ ‑ ‑

PN501

MR MINUCCI: That's not necessarily right as I read the award. It's a discretion inbuilt into the award as to whether or not that entitlement is provided and I say that by reference to – and I'll turn the provision up and just deal with it now. So 27.1 provides that at nine hours or more they get one or two 10‑minute breaks.

PN502

THE COMMISSIONER: Yes.

PN503

MR MINUCCI: So one or two. And one or two meal breaks. So that there on its face contemplates a discretion. My submission is that that discretion rests with the employer. Now, clause 17 of the agreement contemplates at 17.1 the entitlements to meal breaks by reference to the periods of shift or periods worked. And the Commission will see there ‑ ‑ ‑

PN504

THE COMMISSIONER: Sorry, can – let's just focus on the words in the award.

PN505

MR MINUCCI: Yes.

PN506

THE COMMISSIONER: Isn't it – it's one or two, one or the other, 10 minute breaks.

PN507

MR MINUCCI: Yes.

PN508

THE COMMISSIONER: And that turns on reading the whole provision together, that depends on whether there's a second meal break or not.

PN509

MR MINUCCI: That's for the rest breaks only.

PN510

THE COMMISSIONER: Yes. So if you don't get a second meal break ‑ ‑ ‑

PN511

MR MINUCCI: You get two 10‑minute rest breaks and that you'll – the Commission will see on page 16 of the agreement.

PN512

THE COMMISSIONER: Yes. Yes. Yes. Yes.

PN513

MR MINUCCI: And given that that part's complied with, we don't need to worry about the next part in relation to the meal break.

PN514

THE COMMISSIONER: Yes. Because you're always giving – you've sort of chosen the rest break, I'm always giving two meal rest breaks.

PN515

MR MINUCCI: Correct.

PN516

THE COMMISSIONER: Yes, I get it. Yes. Yes.

PN517

MR MINUCCI: Can I just take one moment, Commissioner?

PN518

THE COMMISSIONER: Yes.

PN519

MR MINUCCI: If the Commission pleases, unless there's anything specific that is troubling the Commission or that I can provide further clarity on those would be the submissions of the applicant.

PN520

THE COMMISSIONER: Thank you.

PN521

Is there anything in reply?

PN522

MR TIERNEY: Commissioner, only to note that as stated in my opening there's definite financial benefits that are removed, the meal allowance, the laundry allowance and also the public holiday overtime for fulltime and part‑time employees. My learned friend refers to the loaded rates and with the removal of leave loading, those loaded rates are somewhere between six and seven - .6 and .7 per cent.

PN523

THE COMMISSIONER: .6.

PN524

MR TIERNEY: I would submit that they now have a lot of work to do in light of significant financial benefits that are removed as opposed to the award so I just reemphasise that point but nothing else arises.

PN525

THE COMMISSIONER: Sure. All right. Now, just let me be succinct in the process from here. As I've said to many a party the approval process is not a negotiating forum and that's been made clear by at least one Full Bench in this place. It's really a matter of the parties putting their best foot forward and then we make a decision about whether or not to approve the agreement.

PN526

Now, there's a unique circumstance in this matter in that I have up till this point the parties are sitting with the previously expressed provisional view that the agreement passes the boot which the parties are aware of. That view is expressed before the contradictor, it's really the SDA was involved, having considered those submissions I can indicate that I no longer hold that provisional view.

PN527

My view is that the – essentially in summary, the range of detrimental matters that are clearly there combined with the – even taking into account those matters additional to the additional wages that are submitted are more beneficial, some of which I'm not satisfied are more beneficial but in any case, I no longer have the provisional view that the agreement passes the boot.

PN528

So I'd propose this course and this may well be the quickest way to resolve it, I certainly think and I agree with you, Mr Minucci, in all the circumstances you most certainly should have an opportunity for your client to consider in these circumstances whether they provide additional undertakings. You've made concessions on a couple of the matters that I consider less detrimental.

PN529

Of course the – as the parties are all aware and as the benches have made clear in Armesal and in loaded rates it is a matter of considering all of the matters together. It's been convenient that the parties have agreed to the facts as set out in the background document, as you'd like of a jumping off point but where we're jumping off from is that at its lowest we're at .68 per cent above the award rate and it's at its highest, .78 per cent leaving aside casuals who are in a different category because we don't have the leave loading deduction.

PN530

The short point is, and I think it was well put by the SDA that there's a lot of work for that amount of money to do in terms of offsetting the less beneficial terms which are evident.

PN531

What I might do is just adjourn for a moment and I'll allow the parties to have some discussions but essentially the first pathway is that having expressed that view, I accept without detailed reasons but having expressed that view I can provide an opportunity now – well, now being in the preceding days, I'm not suggesting that you're going to be able to do this on your feet but for the applicant to provide further undertakings and then – but just be clear there's one shot at this.

PN532

We're not at Subway where you'll get to select whether or not you'll have and cheese or the special sauce so it'll be put your best foot forward.

PN533

Don't worry, you'll get a chance to respond, Mr Minucci.

PN534

And then I'll just tell you whether or not the undertakings have got it over the line. Alternatively there's pathway 2 which is I'll reserve and suffice to say that you know what the result's going to be but I'll provide full written reasons setting out the balancing exercise in respect of the boot which of course is going to set out what I consider to be the less beneficial terms.

PN535

But I think to a certain extent – there's a few contested ones but I think to a certain extent you know where that's at. Happy to go that way. Of course that just takes more time and I'm looking at your client there but I can issue that decision – and again, you'd be provided with the opportunity to provide undertakings but it's not going to – if you're contemplating that waiting for the written decision will enhance your ability to provide, I don't know, particular undertakings, that's not necessarily going to flow if that makes sense.

PN536

MR MINUCCI: No, I understand that, Commissioner. I might take instructions but there is one matter that I would propose potentially is a third way which would be whether its ultimately done on transcript or in writing or by some other means.

PN537

THE COMMISSIONER: Mm.

PN538

MR MINUCCI: Is that in essence we would like to take the opportunity obviously to have undertakings. But I don't want to box at shadows about particular things that may or may not be troubling for the Commission because we have a large number of employer clients that are subject to this agreement. And we'd need to get instructions on the particular matters and we'd like to do that once so that we can address all of the concerns in one hit and that can be done such that we would then be able to provide undertakings, have the discussions with my friends about whether or not we consider those undertakings meet the relevant requirements.

PN539

THE COMMISSIONER: Mm.

PN540

MR MINUCCI: Such that we may be in a position to put an agreed position to the Commission and that may be the cleanest way forward, such that the Commission doesn't have to issue written reasons about these matters but such that the parties have some guidance as to the particular matters about which we would need to get instructions and about which we would need to offer undertakings.

PN541

THE COMMISSIONER: Well, one way I could do that would be to issue a short statement which would indicate but without any particular reasoning around it to speed it up. The matters I think are more beneficial than those that I think are less beneficial.

PN542

So, for example, I'll just go to your submissions. I was just picking - I was picking one out randomly. Well, the better one and I think you probably picked up on my views about it but clause 12.2 your position, as I recall, was it's at worst neutral, at best slightly more beneficial. So clause 4.2 in the award is the requirement to agree when the part time starts. Yours is much more open than that.

PN543

My indication on that will be that that factor has always beneficial term and then I'll set out others that are in contest. I deal with the ones that are in contest. Leave loading we've dealt with. We've got the background document setting the jump-off point. I can do that. Would that be - is that - we'll break in a minute. I obviously want to hear from - - -

PN544

MR MINUCCI: Of course.

PN545

THE COMMISSIONER: - - -Mr Tierney.

PN546

MR MINUCCI: It may. I suppose what I was more envisaging, Commissioner, is the ones that you say on a provisional basis let's say.

PN547

THE COMMISSIONER: Mm.

PN548

MR MINUCCI: Are the ones that are going to torpedo the deal. So the ones - the best - - -

PN549

THE COMMISSIONER: No. No. You won't get that. You're going to get - so this is where - this is why I'm being clear. It's not going to be because that's - what you're doing there is you're just starting to invoke the line by line assessment and that's not what it's going to be.

PN550

MR MINUCCI: No, no. I accept that. But in the written reasons that we get from the Commission, either accepting or rejecting the particular instrument there will be terms that are identified that way or that are suggested in the written reasons that are - - -

PN551

THE COMMISSIONER: Well, no. No, I'll just be clear. Instead of going to that extent that's - you're moving towards full written reasons.

PN552

MR MINUCCI: No, no. I know I accept that.

PN553

THE COMMISSIONER: Yes.

PN554

MR MINUCCI: But that's not what I'm asking. What I'm simply saying is that in that context there will be an understanding at least obtained from - by my clients about the particular clauses that are troubling the Commission.

PN555

THE COMMISSIONER: I don't think you're going to get that. What you're going to get is I agree that x, y - a, b, c, d, e, f, g are less beneficial terms vis-a-vis the agreement. I agree that there are higher rates. I agree that there are - I don't know if there was anything else but whatever else - as more beneficial. It's agreed - the parties have agreed that for level one, two and three the gap is 'x'. I don't accept that the amount that is in that more beneficial payment offsets these less beneficial terms.

PN556

What you don't quite know at the moment is on some of those more contested points I just picked out 12.2 that there'll be others. You know, superannuation and so on. What am I saying about that? So I can give you that if that's helpful because then you won't be shooting at things that I don't think that I found are not less beneficial so you won't be wasting your time giving the undertakings about things that I don't care about. To that extent it could help. Well, if they're not - - -

PN557

MR MINUCCI: That may.

PN558

THE COMMISSIONER: But there's not going to be like, "This one I'm rating as a six", and - - -

PN559

MR MINUCCI: No, no. And I wasn't. No, no. I wasn't - that's not what I was getting at.

PN560

THE COMMISSIONER: - - -this one I'm running as a three.

PN561

MR MINUCCI: It's certainly getting at the ones that we need to - what I'm really trying to get from the Commission is the ones that are - - -

PN562

THE COMMISSIONER: No, no. But this is - just let's be really clear. What you're going to get is what I foreshadow. I can't explain it any more clearly.

PN563

MR MINUCCI: No, I understand.

PN564

THE COMMISSIONER: You could deal with that by saying, "We'll fix all of that. We're going to pay 10 per cent more in the award." That's one solution. You know? Just - - -

PN565

MR MINUCCI: No. I hear what the Commission says.

PN566

THE COMMISSIONER: Yes. And that may well wipe out the whole lot or you might want to try and give a range of undertakings that pick out the various provisions and run the gauntlet of whether you're substantially changing it and all of those things but - you know - that's how it's going to work.

PN567

MR MINUCCI: I hear what the Commission says.

PN568

THE COMMISSIONER: Yes.

PN569

MR MINUCCI: Before I commit to a particular view I might just have to take some instructions about that.

PN570

THE COMMISSIONER: Of course. Yes. Yes.

PN571

MR MINUCCI: And obviously hear from Mr Tierney.

PN572

THE COMMISSIONER: Mr Tierney. Yes.

PN573

MR TIERNEY: Well, Commissioner, the proposal you've put forward - I think - obviously our preference would be for you to just prepare written reasons but plainly you've given the opportunity to the applicant to provide undertakings. All the SDA would seek is a right of response to whatever undertakings are proposed and we would reserve our right to submit that the agreement, notwithstanding any undertakings are put forward doesn't meet the BOOT.

PN574

THE COMMISSIONER: Yes. Sure. No, that will be - you will get a chance to comment and you'll get a chance to reply to any comment they make. That's the thing with these things, they go on and on.

PN575

MR MINUCCI: I understand, Commissioner. I understand. Just on that basis then if I might take 10 minutes?

PN576

THE COMMISSIONER: Yes. No problem.

PN577

MR MINUCCI: If we could come back at say quarter?

PN578

THE COMMISSIONER: We'll come back at quarter to. Yes.

PN579

MR MINUCCI: If the Commission pleases.

SHORT ADJOURNMENT [11.37 AM]

RESUMED [11.51 AM]

PN580

THE COMMISSIONER: Yes, Mr Minucci?

PN581

MR MINUCCI: If the Commission pleases, thank you for that time. We would like to proceed on the basis that the Commission has foreshadowed by the receipt of or the issuing of a statement identifying the particular matters that the Commissioner and I canvassed earlier and from that basis the applicant will endeavour to gain instructions.

PN582

THE COMMISSIONER: Yes.

PN583

MR MINUCCI: Possibly engage with my friends and hope to address those matters in one way or another.

PN584

THE COMMISSIONER: Sure. So to be clear and consistent with the scheme of the Act I have indicated that I have moved from my provisional view that I didn't have any concerns about the BOOT with the meal allowance undertaking. I now have a concern about the BOOT and really what the statement is going to do is to set out in summary form that concern. No more than that. Okay?

PN585

MR MINUCCI: Yes.

PN586

THE COMMISSIONER: All right. Well, I'll endeavour to get that out as quickly as possible. Obviously, I have provided to you, Mr Tierney, and I will attach to that a - I mean I'm conscious of the fact that this is a single interest employer authorisation so getting instruction is not as straight forward as speaking to one HR manager. So two weeks after I issue.

PN587

MR MINUCCI: Yes.

PN588

THE COMMISSIONER: To respond with any undertakings.

PN589

MR MINUCCI: Yes.

PN590

THE COMMISSIONER: And then just to be clear I'll either approve it or I won't. After you will get a chance to say what you want to say about that but you won't get long. It will be just - is there anything you want to add basically and then I will make a decision as whether I will approve it or not. It will be as simple as that.

PN591

MR MINUCCI: Yes.

PN592

THE COMMISSIONER: Okay?

PN593

MR MINUCCI: As the Commission pleases.

PN594

THE COMMISSIONER: All right. I'll get that out to you as quickly as I can. Sorry, anything else you wanted to say, Mr Tierney? I didn't - - -

PN595

MR TIERNEY: No, Commissioner.

PN596

THE COMMISSIONER: Yes. All right. We're adjourned.

ADJOURNED INDEFINITELY [11.54 AM]