PN32

THE COMMISSIONER: Good morning, all. Perhaps I'll confirm the appearances, or at least those principally appearing. So, for Transit Systems, Mr Moir. Good morning.

PN33

MR MOIR: Yes, good morning, Commissioner.

PN34

THE COMMISSIONER: For Busways North West, Mr Izzo.

PN35

MR IZZO: Good morning, Commissioner, now I'm here.

PN36

THE COMMISSIONER: Good morning. Keolis Downer, Mr Price?

PN37

MR PRICE: Yes, good morning, Commissioner, thank you.

PN38

THE COMMISSIONER: Good morning. Transdev Australia, Ms Beaman.

PN39

MS BEAMAN: Yes. Thank you, Commissioner.

PN40

THE COMMISSIONER: Yes, good morning. And for the RTBU, AMU and ASU, Ms Saunders. Good morning.

PN41

MS L. SAUNDERS: Good morning, Commissioner.

PN42

THE COMMISSIONER: So, have I missed anyone? No. All good. So, this is a hearing being conducted on behalf of the annual wage review the annual wage review expert panel to permit final submissions to be made concerning issues surrounding certain copied state awards in the context of the Annual Wage Review 20-21, 22. The outcome of the hearing will be, in effect, the transcript of today's proceedings. That transcript along with the proposals or the submissions originally advanced by the relevant employers, the positions advanced in that context on behalf of the relevant unions, the transcript of the mention before Justice Ross on 17 May, the background paper dated 25 May, the written submissions in response to the background paper, and of course, this transcript will all form the material for the expert panel to ultimately determine the relevant issues.

PN43

I should indicate that unlike other proceedings where I or other members of the Commission have conducted proceedings on behalf of the expert panel or a Full Bench, I will not be issuing a report which might then form the basis of final submissions. In this case, time doesn't permit that course of action and so this is your opportunity to provide your relevant submissions, so I thought I should clarify that upfront.

PN44

Has there been any discussion between the parties about who might proceed first, or the order of making submissions? No? Perhaps in that context, I suggest the following order just for convenience. Maybe if I hear first from Transit Systems, given the different view that's expressed in the submissions about the power, in particular, about retrospective variations or retrospective effect, and then perhaps Busways, Keolis Downer, Transdev, and then the unions, and then final replies from anyone who wants to be heard. Are there any objections to that course of action?

PN45

MS SAUNDERS: Not quite an objection, Commissioner, just a difficulty on my end. I have another matter before Commissioner Ryan at 2 o'clock. It may be that if we look like running past 1.000 I might ask to be interposed and then excused, if the Commission would be willing to indulge me in that respect.

PN46

THE COMMISSIONER: I would be very disappointed if we were still proceeding at 1 o'clock, but thank you for the heads up. Very well, Mr Moir, I think you're up then.

PN47

MR MOIR: Sorry, Commissioner, when you announced the order the screen froze and the sound faded away, so I didn't quite hear all of that. But would you like me to kick off?

PN48

THE COMMISSIONER: Yes. Perhaps without repeating the entire order, what I've suggested is that you might proceed first, given that your position is slightly different from the others and then I'll hear from the employers and the unions.

PN49

MR MOIR: Certainly, Commissioner. I'll be very brief. Transit Systems, my client, relies upon its written submissions. There are two lots of written submissions that have been filed. The first is the outline of submissions dated 1 April, 2022 filed with the Commission on that date. There is then further short submissions filed earlier this week, dated 1 June 2022.

PN50

In addition to those submissions, Commissioner, there is a witness statement which was filed as part of the submissions on 1 June, 2022. It is referred to as an affidavit of Mr Jamie Sinclair who is the general manager, or managing director of my client here in New South Wales. So, I ask that that affidavit be received in the nature of a witness statement.

PN51

The principal purpose of the witness statement by Mr Sinclair was to answer the Commission's query in the background paper as to the status of enterprise bargaining negotiations between Transit Systems and the respective unions, and the employees who are subject to the copied state awards applying to the business of Transit Systems.

PN52

THE COMMISSIONER: Does anyone wish to be heard on the question of the witness statement? Very well. Thank you, Mr Moir.

PN53

MR MOIR: Thank you, Commissioner. So, just in overview, Commissioner, the position of Transit Systems really has two elements. The first element is that Transit Systems seeks that the Commission revoke or vary its 2018-19 and 2019-20 decisions to award wage increases to the rates of pay in the copies state awards applying to Transit Systems and its relevant transferred employees. There are three such copied state awards referred to in the application that was made by Transit Systems, as well as in the submissions. That's the first element.

PN54

The second element which, if you like, joins in with the other employer parties here present today, is that Transit Systems submits that the panel should not grant any increase in this year's annual wage review. That submission is made on the basis that the existing award rates under the copied state instruments are already significantly higher than the current modern award rates of pay, and the basis for that submission is set out in the written submissions, including the tables, which show the Commission the significant difference between the copied state award rates and the existing modern award rates of pay. So, that part of the application joins in with the other bus operators.

PN55

However, the first element is unique to Transit Systems. If you like, Commissioner, Transit Systems was at the vanguard of this transfer of business which took place from the New South Wales Government to the private bus operators in various regions throughout metropolitan Sydney. So, Transit Systems was at the vanguard of that when Region 6 was transferred from the State Transit Authority to Transit Systems.

PN56

That transfer took effect, as you know, Commissioner, on 1 July 2018, and at the time of that transfer, approximately 900 employees who were formerly employed by the State Transit Authority became employees of Transit Systems. Those employees remained subject to the terms and conditions set out in the Copied Bus Operator Award. I just use that expression for shorthand for the relevant state instrument, that is the award made by the Industrial Relations Commission in late 2017. That instrument, by operation of part 6-3A of the Fair Work Act and the transitional legislation, became a copied state award.

PN57

Now, under that copied state award, it provided for annual wage increases commencing on 1 January 2018. So, the first increase that applied under the auspices of the copied state award was on 1 January 2019, and that was a 2.5 per cent wage increase, and then there was a further 2.5 per cent increase on 1 January 2020, mandated by clause 15 of the copied state award.

PN58

In this matter before the panel, Transit Systems is in effect seeking that the panel now apply the approach which the panel had applied for many years towards the adjustment of wage rates in copied state awards. I am referring there to the tiered approach which was adopted by the Fair Work Panel from its 2013 decision up until its decision in around 2017. That tiered approach was one in which the Fair Work Panel took into account the wage increases that were already afforded under the terms of a copied state award itself.

PN59

This tiered methodology is described in the background paper. It is set out at paragraphs 41 to 44 of that background paper. You will see there, Commissioner, that the tiered approach was first introduced, as I say, in the 2012-13 review decision. The actual tiered approach is set out at paragraph 43 and, under this tiered approach, depending upon when the wage increase came into effect under the copied state award, there was either no annual wage review increase or only a partial one.

PN60

If that tiered approach had been applied at the time of the 2018-19 and 2019-20 decisions, then by virtue of the interaction of that tiered approach with clause 15 of the Copied Bus Operator Award, there would not have been an annual wage review increase.

PN61

The tiered approach would have resulted in no further increase. The employees would, of course, have been entitled to the 2.5 per cent increase mandated by clause 15, but there would be no further annual review wage increase in those decision years if the tiered approach had remained in place.

PN62

As you can see from the subsequent paragraphs in the background paper, that tiered approach was abandoned by the Expert Panel. It was abandoned, it seems, largely because the issue of copied state awards was just not one that was being brought into any focus before the panel. There were no specific copied state awards that were being brought to the attention of the panel, and the panel responded to a proposal, largely on the part of the trade union movement, to replace the tiered methodology with a different way of addressing the potential issue of double-dipping, which was to examine the matter on a case by case basis.

PN63

Now, that shift in the methodology from the tiered approach to an examination of the issue on a case by case basis, or subject to an individual application, was evident through a number of decisions of the panel that are set out at paragraphs 45 and 46. Ultimately, those decisions culminated in the position that was taken in the 2017-18 review decision, which confirmed that this matter would be addressed on a case by case basis.

PN64

Essentially, that is what the Fair Work Panel is now dealing with in respect of my client. It is hearing an individual application to address the issue having regard to the particular circumstances of that application.

PN65

The tiered methodology, if it had still remained in place, would have avoided such an application having to be made. That's because the tiered methodology was, in its nature, a self-executing revocation or variation of the panel's determinations to award increases in the award rates under the copied state awards. So, a party did not need to make an application for any such variation or revocation; rather, this variation or revocation was built into the panel's determinations through the tiered methodology.

PN66

Nonetheless and notwithstanding the abandonment of the tiered methodology, the reasons behind that tiered methodology remain just as powerful as they did at that time, namely, the tiered methodology was designed to prevent double-dipping, and that's clear from the decisions of the panel stretching back to the original decision in the 2012-13 review. So, the panel was obviously very mindful to avoid a situation where double dipping would occur, and that's for the obvious reason that such double dipping amounts to unfairness. It also has other adverse consequences in that it involves annual wage review increases being awarded on top of the bargains that may have been struck by the parties as reflected in the terms of the copied state award.

PN67

Now, in this particular award, the copied Bus Operator Award was a consent award made in the New South Wales Industrial Relations Commission. It was an award made between the State Transit Authority and the Rail Tram and Bus Union, by consent. It's terms had been negotiated and agreed and those terms included the annual 2.5 per cent wage increases. The Industrial Relations Commission of New South Wales, then approved that instrument, as I said in December 2017. Under that agreement there were annual wage increases over a three year period, very similar to what one would find for instance, in an enterprise agreement struck between an employer and a union, covering a number of years with annual wage increases in each of those years.

PN68

Now, it's important to note the relief that is sought by Transit Systems in this matter, it doesn't involve clawing back monies that have already been paid to the relevant employees of Transit Systems. The reason I say that is that the orders that have been made by the Federal Court in respect of the backpay are for the annual wage review increases under the 2018-19 and 2019-20 decisions, have effectively been stayed pending the expert panel's determination of Transit System's application. Those orders were made following the decision of Justice Rares in the Federal Court on the 4 April 2022.

PN69

Pursuant to those orders, the amount of backpay has been quantified in respect of each individual employee. It's been quantified by way of a court ordered audit, wages audit which was also paid for by my client, pursuant to the orders. However, the actual payments of the backpay are not due to be paid until after the Commission's determination of Transit's application. Now, that's a somewhat unusual course for a court to adopt, not to make orders for the payments to occur almost immediately. However, the court was persuaded to allow some times for the Commission to consider the application for relief made by Transit Systems.

PN70

If the application is successful, then there's scope for the parties to go back to the court and have the orders revisited. That's built into the existing orders. If the application is unsuccessful, then the orders for the back payment are in the nature of a self-executing and those back payments will then have to be made under the orders commencing in July. So, this is obviously mindful of the Commission's timetable that the Commission has to make its decision in this annual wages review some time before the 30 June and Justice Rares was mindful of that and so the orders are self-executing if this application is unsuccessful.

PN71

The amount of backpay has been quantified in the amount of approximately $3.5 million across the approximately 900 employees. That quantification of approximately $3.5 million includes the compounding effect of the annual wage review increases on top of the pre-existing 2.5 per cent clause 15 increases. It also includes the payment of interest going back to when the payments were first due. So, there's no situation here that money has to be taken out of any employees' pockets if the relief was granted because the court has already avoided that very situation through its orders.

PN72

The critical issue which is raised in the background paper and is also joined between my client and the unions in their submissions is of course the jurisdiction of the Commission to grant the relief sought. That is, the relief in the nature of a revocation of the 2018-19 and 2019-20 decisions. Transit Systems maintains its position that the Commission has the power to grant the relief sought, and Transit also submits that the merits of the application are strong if it is found that this power does exist.

PN73

Perhaps the key issue on the jurisdictional point is this, Commissioner, and that is, whether the 2018-19 decision and the 2019-20 decision are each decisions made under part 2(6) of the Fair Work Act, and thus whether the Commission is prevented from making the revocation sought by section 603(3)(d) of the Fair Work Act. Commissioner, you've seen the short written submissions that Transit Systems has filed earlier this week. They key point that Transit Systems makes in those submissions is that the 2018-19 and 2019-20 decisions to vary the copied state awards applying to Transit Systems were not decisions made under part 2(6), but rather were decisions under item 20(1) of Schedule 9 of the Transitional Act.

PN74

In making this submission, Commissioner, Transit Systems is of course in very good company. It was the same contention that was made by the ACTU in the 2016-17 review correction decision. That decision is referred to in the background paper and Commissioner, if you go to paragraph 25 of the background paper, it refers there to the 2016 review correction decision. In that decision, the expert panel had to consider its power to correct an error in the decision that it had made. At paragraph 27 the submissions of the union parties are set out and in that regard, I refer to the second paragraph of the quote as to the ACTU's position in that matter that, namely, that the exact same position made by Transit Systems, that a decision to vary minimum wages in a copied state award, is a decision made under item 20(1) of Schedule 9 to the Transitional Act, and not a decision made under part 2-6 of the Act.

PN75

The matters that Transit Systems raises in the short submissions of 1 June are essentially three points to support this contention, Commissioner. One point is just a plain matter of fact or characterisation, that is, what did the Expert Panel actually do as a matter of fact in its 18-19 and 19-20 decisions. Transit Systems makes the point that it's plain from a reading of those decisions, and indeed all of the earlier decisions of the Fair Work Panel, that what the Fair Work Panel thought it was doing as a matter of fact was exercising its power under item 21 of schedule 9.

PN76

In that regard, Transit has referred to the original decision of the Commission in the 2012-13 review decision where, for the first time, the panel had to consider its power to vary transitional instruments and, in particular in this matter, in that case, its power to vary copied state awards, and the panel in that decision expressly referred to item 20(1) of schedule 9.

PN77

So, that's the matter of factual characterisation and that alone is sufficient, in my respectful submission, for a finding to be made that the decisions were not decisions made under part 2-6, they were decisions made under the Transitional Act.

PN78

There are two further points, each of which again can be accepted to support the overarching contention that there is power to grant the revocation sought. Both of these points are matters of statutory construction, Commissioner. The first is dealing with the construction of item 20(1) itself and the second is dealing with the construction of section 603(3)(d).

PN79

The point we make on the construction of item 20(1) is that that subclause is clearly the source of the power that the Commission has in an annual wage review to vary wage rates in copied state awards. The point we also make is that subclause (2) of item 20 is not the source of that power per se but rather that is a provision which is in the nature of a facilitative provision in that it is facilitative of the power to vary found in subclause (1). It is not the source of the power per se. What it does is that it facilitates the exercise of that power by saying that, in exercising of the power, the Expert Panel has to take into account the matters that are set out in division 3 of part 2-6 of the Fair Work Act.

PN80

We also refer to the provisions found in section 768AW of the Fair Work Act. If one is looking for a clear statement of the legislative intention as to where the source of power lies, you couldn't get any clearer statement than what's found in section 768AW, namely that there are limitations imposed on varying copied state awards. They can only be varied in limited circumstances. One of those circumstances is where there is a variation made under item 20.

PN81

That is a very clear statement of what the parliament thought it was doing in conferring the power on the Commission to vary copied state awards in an annual wages review. It was giving that power to the Commission by virtue of item 20, that is, by virtue of the Transitional Act, not by way of a decision under part 2-6.

PN82

The other point of statutory construction is about the scope of section 603, in particular subclause (3)(d), which the unions rely upon to argue that Transit's application is beyond power. In that regard, Commissioner, Transit says that the restriction that's imposed under (3)(d) of section 603 shouldn't be given a broader meaning than its words fairly allow.

PN83

It is not as if that provision refers to a decision that's made under item 21 of schedule 9 of the Transitional Act; it refers only to a decision made under part 2-6. The parliament could have amended section 603 when it introduced copied state awards into the Fair Work Act at any time after December 2012 when part 6-3A commenced. The parliament obviously hasn't done that; the parliament has not extended those words to include a decision made under item 20(1) of schedule 9 of the Transitional Act.

PN84

Those, in our respectful submissions, are the critical matters of statutory construction and factual characterisation which bear upon the jurisdictional issue as to whether the Expert Panel has the power to grant a revocation in this matter.

PN85

If the Expert Panel is of the view that it does have such a power because it's not restricted by subclause (3)(d) of 603, then, in my respectful submission, the merits in favour of the application are overwhelming. The reasons for that have already been set out in the original written submissions of Transit Systems.

PN86

In the more recent short submissions, Transit Systems has also pointed to other provisions in the Act which should guide the exercise of the Commission's revocation power. Those provisions which are most important here to guide that exercise of power are those provisions which refer to the Commission exercising its powers in a manner that's fair and just and taking into account equity, good conscience and the merits of the matter.

PN87

It is plain that the Expert Panel would have prevented this situation from occurring in the first place through its original tiered methodology. The reason for that is, of course, to prevent unfairness in the form of double-dipping and also undermining the bargain, the collective bargain, that was struck between the parties to the original state award.

PN88

Those matters remain just as salient now, even though the methodology has changed. The Commission always said when it did change the methodology that if it had to deal with an application on a case by case basis, it would address double dipping, not that it may, it would address it because it's obvious that such a situation is manifestly unfair and should be remediated, in this case, through the grant of individual relief.

PN89

So, it's not really just a situation of inconvenience as suggested by the unions in their submissions. It's actually a matter which goes well beyond that. It goes to fundamental unfairness to Transit Systems in having to pay twice and therefore conferring on the transferred employees a double benefit. It's also unfair to other employees of Transit Systems who don't receive the windfall benefit. So, it's unfair in the sense that there are other bus operators or bus drivers employed by Transit Systems who are not covered by the copied State Award and who do not receive, or would not receive a double increase in the same calendar year. So, the unfairness occurs right throughout the organisation, not just towards the employer, but its other employees.

PN90

THE COMMISSIONER: Mr Moir, I take it the non-copied award employs a different basis.

PN91

MR MOIR: That's correct, Commissioner, yes. So, there are non-copied State Award employees who are covered by an enterprise agreement with the Transport Worker's Union. Those bus drivers work in region 6, the same region as the transferred employees. They receive an increase, an annual increase under their enterprise agreement. Of course, they don't receive an annual wage increase on top of that during the same year.

PN92

Of course, it's in the nature of the power to evoke that what the Commission would be doing, is effectively cancelling out or rescinding or calling back the thing that was determined. What was determined here, as found by Justice Rares in the Federal Court, is a variation to increase the wage rates in the copied State Award, by the relevant percentages in those two decisions. If the Commission exercises its power of revocation. It's effectively calling back the thing that was determined, and that's well within the nature of a power to revoke. That's essentially what revoking means, whether it's revoking a will or revoking a contract, rescinding a contract. What Transit Systems is asking the Fair Work Panel to do in this case is to revoke its determinations, insofar as they applied to Transit Systems and the transferred employees covered by those copied State Awards.

PN93

Just then finally, on the second element, which is about not granting an increase in this year's annual wages review, I just rely upon the tables which were included in the 1 April submissions. Those tables show that the award rates under the copied State Award are not just slightly higher than the existing modern award rates, they are very significantly higher than the award rates found in the relevant modern award. That relevant modern award is of course the Passenger Vehicle Transportation Award 2010.

PN94

So, it's on that basis, in respect of this year's decision to award a wage increase, Transit Systems submits that the panel should not do so, having regard to that significant uplift, if you like, in the current rates applied to the transferred employees, compared to the modern award rates.

PN95

If I could just have a moment, Commissioner.

PN96

THE COMMISSIONER: Yes, certainly.

PN97

MR MOIR: Just one further point, Commissioner, I also rely upon the evidence of Mr Sinclair, as set out in his witness statement dated 1 June. In respect of the impact that the past increases have had on enterprise bargaining, furthermore, I rely upon that evidence in regard to the impact an increase in this year's decision will have on bargaining. The evidence of Mr Sinclair is that it will have an adverse impact on bargaining in that it creates a strong disincentive for the parties to conclude their enterprise bargaining negotiations.

PN98

He says in this evidence that the existing rates set out in the Bus Operator copied State Award, increased by the last two annual wage review increases are a real impediment to effective enterprise bargaining. He explains that by reference to the differences in the rates of pay applicable to Transit's employees and to the competitors of Transit Systems and their employees. Of course, the Commission is familiar with the situation in which rates of pay in an award instrument can be a real impediment to bargaining if those rates of pay are effectively at a market rate of pay, rather than just a minimum. That's the situation here.

PN99

So, unless there's anything further, Commissioner, those are the points or submissions made by Transit Systems, and we appreciate the panel giving us an opportunity to make those submission today.

PN100

THE COMMISSIONER: All right, just two questions, both associated with the, if I can use a shorthand description. The retrospective part of your client's claim, that is the two previous decisions. Firstly, I think you indicated that the variation you're seeking is to vary the copied instruments as applied to Transit Systems, and so I understand to Transit Systems only.

PN101

MR MOIR: Yes, yes, as applied to those copied State Awards, which only apply to Transit Systems. So, the copied Award only applies to Transit Systems.

PN102

THE COMMISSIONER: So, to just be clear there are no other employers or employees affected by the retrospective part of your proposition?

PN103

MR MOIR: No, that's right. It's Transit Systems West Services Pty Limited.

PN104

THE COMMISSIONER: All right. Look, the second question I raise is in the context of if there is a discretion, if the panel is with you on the jurisdictional issue.

PN105

MR MOIR: Yes.

PN106

THE COMMISSIONER: One of the factors that the Commission, when considering retrospective application, I've often looked at the conduct of the party seeking the retrospective variation. What's the impact, if any, of the fact that the application is being made now as against say the previous annual wage review, given that it occurred in the one before that?

PN107

MR MOIR: So, the issue of wage increases being applicable by virtue of the panel's determinations in the 18-19 and 19-20 decisions.

PN108

That only came to the attention of Transit Systems for the first time last year, and that was when the union raised the issue of the 20-21 increases, so not the 18-19 or 19-20 but the 20-21 increases, and you can see why they have raised the 20-21 increases last year because clause 15 did not have an increase for the 20-21 year, so there was no increase under clause 15 of the copied award, the Bus Operators Award, for 1 January 2021.

PN109

The union then wrote to the company, and this is set out in Rares J's decision - all of the correspondence - wrote to Transit Systems in about July, so after the Commission's decision last year - within a few days, I think it was, of the Commission's determination, the union wrote to Transit Systems and said, 'Oh, well, hey, what about the 20-21 increase?'

PN110

It was then, subsequent to that, and it was only really some months later when the proceedings commenced in the Federal Court, and they were commenced at the end of August last year, that the union then made a claim in respect of the increases under the earlier decisions, and it was in respect of those earlier decision that Rares J, in his liability decision - that's the decision he made in November last year - Rares J highlighted the complexity of the matter.

PN111

His Honour referred to the complexity of the matter in the nature of the interaction between the transitional legislation and the provisions of the Fair Work Act, and the court decided that some of the earlier decisions had varied - the Copied Bus Operator Award - but other had not. The first that was in the union's claim, which was the 17-18 decision, had not affected or had not impacted upon the wage rates in the Copied Bus Operator Award, but it was the overriding complexity of the matter which had explained how the parties got to the position that they did.

PN112

There were no penalties awarded in respect of the findings made by the court that Transit Systems had contravened the Act by not providing the minimum wage increases under the 18-19 and 19-20 decisions. Again, that's quite unusual for a penalty not to be awarded in respect of a contravention. The union did not seek a penalty, ultimately did not seek a penalty in respect of those contraventions, and the court approved the position adopted by the union, which was not to seek a penalty.

PN113

The reason for not seeking a penalty is rather obvious in that this situation had occurred by way of not any active conduct on the part of Transit Systems or any other party; it was effectively a matter that arose by operation of quite complex law. Both parties were operating under the bargain that was struck when the award was made. The union did not raise any issue about the wage increases in respect of the 18-19 and 19-20 decisions until it actually commenced proceedings in late August last year. It had never raised that issue in the years prior. Both parties were operating under clause 15, which reflected the bargain that was struck, namely that there were agreed 2.5 per cent increases payable to the employees for the first three years of the copied state award.

PN114

I can also refer the Commission, just to give some more substance to what I am saying there, that the parties themselves were acting in accordance with the bargain that they struck. If one refers to clause 15.2 of the Copied Bus Operator Award, it refers to the annual 2.5 per cent wage increases that are set out in clause 15.1. I think the clause is set out in the background paper, if that assists you, Commissioner. I will just see if I can find the relevant paragraph. Yes, it's paragraph 57.

PN115

THE COMMISSIONER: Yes, I have it.

PN116

MR MOIR: Thank you. You see clause 15.1 and 2 there, 15.1 sets out the wage increases that I'm referring to as part of the bargain that was struck. Also as part of the bargain that was struck is what is set out in clause 15.2:

PN117

The wage increases contained in this award are in substitution of any state wages decisions.

PN118

Those words are significant, and they have been emphasised in the background paper, because what they show is that the parties, including the ARTBIU, had agreed that the 2.5 per cent wage increases were in replacement of arbitrated minimum wages adjustments. Now, the wording here refers to state wages decisions, and that's for the obvious reason that when this award was made in December 2017, it was an instrument of the New South Wales Industrial Relations Commission, but it's not hard to see how that could be applied in the federal context. It's reflecting the bargain that the 2.5 per cent wage increases are to replace decisions in the nature of annual wage reviews, whether they are federal or state.

PN119

Essentially they are the reasons why Transit Systems did not come forward earlier. It's an issue that had never been raised until very recently. It's obvious why it wasn't raised until recently because of the bargain that was struck and, when it was raised, the court found it's one of a great deal of complexity and no penalties were therefore imposed by the court in respect of those years.

PN120

I hope that assists.

PN121

THE COMMISSIONER: Yes, thank you very much, Mr Moir.

PN122

MR MOIR: Thank you, Commissioner.

PN123

THE COMMISSIONER: Mr Izzo?

PN124

MR IZZO: Thank you, Commissioner. I'll just check you can hear me okay?

PN125

THE COMMISSIONER: I can indeed.

PN126

MR IZZO: Excellent. Thank you, Commissioner. Obviously we rely on our written submissions and, just for the sake of the record, they are dated 1 April 2022 and 1 June 2022. There's four matters that I wish to address orally today and I will just take you through what they are.

PN127

The first is the actual wage rates paid under the copied state awards and how this topic really interacts with the background paper. That's the first topic. The second is this concept of topping up the wage increases and how we should be looking at that principle. The third is to address the divergence between the New South Wales regulatory regime that set the increase for 2022 and the federal industrial regime that deals with wage increases, and then there's some very brief miscellaneous matters of a very discrete nature that won't take long.

PN128

Can I start with the background paper, Commissioner. Obviously we thank the Commissioner for preparing the background paper. The papers are always helpful to distil the relevant issues and they have been of assistance to my client to date, and I also appreciate they don't represent the views of the Commission. So, I make those remarks genuinely because what I'm now about to say is that I'm very disturbed by the content of the background paper, so hence my need to caveat the comment that they are of assistance.

PN129

But in this case I am genuinely disturbed, and the reason I am disturbed, Commissioner, is that despite extending for 35 pages, and despite broadly outlining the positions of all the parties, nowhere does the background paper mention the fact that wages payable under these copies state awards are manifestly higher than Modern Award wages for the same work, and we say this is the single biggest factor relevant to consider in the present case.

PN130

Because before you determine whether to award an increase, the rational starting place must be to look at the existing wage rates as they presently are. And that's when a stark disparity becomes apparent. A number of the bus employers have now outlined in their various submissions how the copied state awards sit against modern awards for the same work, and so I don't need to take you through that. What's clear is that the differences are substantial.

PN131

In the lowest grades it might be around 16 per cent. But what you'll see is that for most of the grades we're talking about wages that are 20 per cent, 30 per cent, 40 per cent and 50 per cent higher than the modern awards. I relation to the Bus Operations Award, the primary driving grade there which is self evident, you don't need evidence for this, in the modern award is grade 3, because that's the grade you'll see that relates to driving a vehicle with basically 25 passengers or more. It's the common bus you'll see on the road, and it's the passenger transport buses that all these companies have contracted for.

PN132

That grade is not 16 per cent, it's significantly higher than that and in fact, I'm just checking. That's 22.8 per cent higher. So, we are talking about significant disparities. The reason that is important is because we are largely talking about workers who are not low paid. I use that phrase deliberately, adopting the Commission's own benchmarks for that phrase. As you would be aware, the concept of low pay, the Commissioner has regularly held to be two thirds of the median wage, that the Commission has identified. In all but two of the classifications we're talking about, these employees are above that threshold.

PN133

Moreover, in all but two classifications the wages being paid are actually above the median equivalised household disposable income. So, not even just the low paid threshold, they're above the median pay of the average worker in this country. So when it comes to the Commission setting a fair and minimum safety net you must take into account for these specific awards, the high wages already in place. And we say, with obviously the greatest of respect that if these things are not taken into account it would be a failure of the Commission to properly exercise its jurisdiction under the Transitional Act.

PN134

That, Commissioner, probably feeds into my second point. And that's about this concept of topping up. It appears to me that the background paper, as well as the unions, are really sitting on an entirely different plain to the bus employers, as well as ABI and ACI(?) who made submissions when it comes to the notion of topping up. The starting point for this whole exercise that you're about to undertake with respect to the copied state awards is the minimum wages objective. That's the overarching focus for whether amendments should be made to these awards.

PN135

It is actually not the modern awards' objective and I'll come back to that later because I think there's a disagreement between us and the unions on that, but I'll deal with that in the miscellaneous matters. It is the minimum wages objective. That requires the establishment of a fair and minimum safety net of wages. To an ordinary and reasonable person if they were to compare the copied state award wages for bus driving work to modern award wages, the simple conclusion that the ordinary person would draw is that if anything is to be susceptible to a top up or to a desire to top up, it would be the modern award, not the copied state award.

PN136

If you were to speak to the employees covered by the modern awards operating in the national system they would certainly tell you, Commissioner, the same thing. And they might be perplexed as to why the Commission's focus, at least in the background paper, is so centred on topping up copied state awards to an instrument that has rates below it. And as we've said in our reply submission it is just mathematically not possible to top up the copied state award rate when it's compared to the modern awards, because they're so much higher.

PN137

So, for us it is concerning that the focus of the background paper, particularly the questions at the end, are on this notion of trying to equate increases in an annual wage review that apply to modern awards, to a copied state award process when we're talking about what's being equated being applied to very different and lower wages.

PN138

So, that's why we're sitting on different planes to the background paper to the unions. Our concern is that the use of this language, 'top up', in particular, it distracts from where the real disparities lie, and so I do think that in the submission of my client, the yardstick and the perspective that's being adopted needs to be re-set, and for the reasons I've said.

PN139

Finally, on top up, to the extent that any other bus operator contends that this could occur, or should occur as an alternative position, we do not accept that, at all. We are firmly opposed to that being seen as an alternative approach. If you were to consider an alternative approach the tiered method previously adopted by the Commission is probably a more appropriate alternative, and we say that having regard to the submissions we have already made. You will see we've addressed that, particularly in our 1 April submissions.

PN140

If I could turn to the third topic I was going to address, Commissioner, these awards have had increases in 2022. That is not contested. I remind you that in the case of my client there's three awards that we're talking about. They have all had increases in either January or March - no, January or April, the Engineering Awards, April. That's why all these employers are here before you today, Commissioner, because we're saying that increases have already been determined as part of a 2022 increase.

PN141

Obviously the increase awarded by the New South Wales Industrial Relations Commission is lower. It's obvious. But you can't just look at the percentage. You have to look at the entire difference in the regulatory regimes. You have to look at what the percentage relates to, to understand the difference in approach between the State Tribunal and the Federal Tribunal.

PN142

The union's submissions, they dismiss what we say here. The last set of submissions filed by Ms Saunders talks about the fact that paid rates are an irrelevant, historical artefact and that there isn't a significant difference in these regimes. They do not deal, and when I say 'they', the unions, are not dealing with the whole context and that's what the Commission needs to deal with, and so I'd like to briefly take you through what is the whole context, Commissioner.

PN143

For that reason, Commissioner, I sent through belatedly to your chambers, some extracts from the New South Wales Act. If you could just have them handy, and I appreciate you're from the South Australian jurisdiction, Commissioner, and so I'm not sure if this appears alien to you.

PN144

THE COMMISSIONER: It does not, and in fact some of the approaches here I see in the form of the State Act that I operated under as a member for 12 years, so I understand, including the style of drafting, I might add, so - - -

PN145

MR IZZO: It is, in many ways, different to the Federal and I suppose that's the point I'm about to make. So, we start with section 10. Section 10 is effectively the power to make awards, and you'll see there, it talks about setting fair and reasonable conditions of employment for employees. You will know, likely by rights I don't need to take you to section 284, Commissioner, but when the minimum wages objective talks about award wages it talks about a safety net of fair minimum wages, and the modern award's objective, which applies to the annual wage review with respect to modern awards talks about a minimum safety net of terms and conditions. This concept of safety net is very clear, as it the fact that it's a minimum safety net.

PN146

We say that's different to fair and reasonable conditions, which is a higher bar. I'll explain why it's a higher bar, Commissioner, because you need to understand the context in which these awards are made. So, if you go to section 11, which appears immediately below section 10, not surprisingly. Section 11 says an award may be made on application to the Commission on the Commission's own initiative, or in the course of an arbitration by the Commission under chapter 3 to resolve an industrial dispute.

PN147

So, that then brings us, Commissioner to industrial disputes, and if I can take you to page 12 of the PDF, you'll see a section headed Chapter 3 Industrial Disputes. You'll see at section 130 that any of the following parties can notify a dispute to the Commission, and industrial organisation, employer, so on and so forth. You'll then see as you scroll down, there's processes for conferences, conciliation and ultimately at section 136, the Commission may, in arbitration proceedings make a recommendation or give a direction or make or vary an award. That's when we get to the making of the award.

PN148

Now, the reason that all of this is relevant, Commissioner, is that this regime is much more enterprise-focused and specific than simply setting common rule awards across industries or occupational lines, as is the case in the Fair Work regime. So, as you'd be aware, the modern awards broadly across industry and occupational lines, they're common rule awards. In the state system, the parties have an ability at any point to really bring a dispute about their enterprise, about their undertaking and to have those conditions regulated. Now, in that context, it makes more sense why the conditions should be fair and reasonable as opposed to simply being an underlying minimum. What we have is a State Commission that can intervene in enterprises in a more specific way.

PN149

That's then what happens in the case of these copied state awards. They're not common rule awards; they're enterprise awards made between the STA and its one workforce. In this sense, it's inevitable with that context, that there's a far greater propensity that these awards will set the actual rate of pay as opposed to just an underlying safety net. So, we don't accept the kind of dismissal in the union's submissions about our comments about paid rates award. The practical effect of the regime under which these organisations operate is that there is a propensity for the rates to be more reflective of the actual – what's been paid.

PN150

Then the last point I make about the difference in the jurisdictions, is that the effect of them, is self-evident. Because then when you actually look at the rates, the rates in New South Wales are much higher, up to 50 per cent higher than what's in the modern award. So, obviously, the different regulatory regimes have resulted in different outcomes. So, you can't then just apply a percentage increase in the Federal regime to the State regime, because it's all the same; it's not.

PN151

That's what I wanted to really draw your attention to, Commissioner, and I do commend you to our submissions of 1 April, paragraph 68 to 72, which takes you through that with a little bit more detail as well. So, that is yet again a compelling reason, if I come back to the background paper, why I just think the whole direction of the background paper, it's heading in the wrong direction, for want of a better phrase. It's focussed on this notion that modern awards get a certain increase; we just apply it over here. It's the wrong starting point.

PN152

I'll now just deal with some miscellaneous matters. There was a question in the background paper about the regulatory regime and we agreed with what was in the background paper and there was just one comment in the union's submissions that I'm just – we don't actually think is accurate, so we just want to correct it. That is whether the modern awards objective applies to the Commission's function in varying copied state awards. Our view is it does not. The reason for that, and we don't view, I might add, the background paper as saying the modern award's objective applies either. It's a little bit unclear, but it doesn't say that expressly.

PN153

If you look at section 134, Commissioner, subsection (2), so obviously 134(1) has the modern award's objective factors that are no doubt very familiar to yourself, Commissioner. If you then go to subsection (2), you'll see then the application of the principles are addressed and it says it applies to the Commission's functions or powers under this part. So, the Commission's functions at large under part 23. Then it says that it applies to the Commission's functions or powers under part 2(6), so far as they relate to modern award minimum wages.

PN154

Now, I'm not aware of any provision in the Transitional Act or any provision anywhere else in the Fair Work Act that says that you extrapolate or you apply those words to copied state awards. Now, elsewhere, there are provisions in the Transitional Act that say you apply part 2(6) to the approach to copied state awards and Transit and the Union have had numerous exchanges about that to deal with retrospectivity. So, that's quite clear. But I'm not aware of any provision that says that 134 is to apply to the exercise of powers under part 2(6) at large. It's only applicable insofar as it deals with the modern award, minimum wages and these aren't modern awards.

PN155

Whether that's – I won't try and explain why, I'm not sure, to be honest what the reason is, but I think as a matter of strict interpretation the modern award's objective does not apply. I'm not too concerned about the outcome either way, because both are focussed on a minimum safety net and what I'm putting to the Commission is that the state regime is somewhat different, but I just thought I would address that issue.

PN156

The other thing that I'd like to – there's two other things I'd like to address more broadly. Mr Moir made a comment about the tiered approach and how the tiered approach came to become abandoned. I tend to endorse those submissions which is that there was a tiered approach that the Commission was satisfied with. The overarching impression from the relevant decision where the tiered approach was abandoned, is simply that it wasn't very clear who was being subject to this arrangement. The unions had urged a different approach.

PN157

The Commission effectively moved to a more streamlined and uniform approach, knowing that there might be problems with it on a case by case basis, and that's why it expressly said that well, we'll need to adapt this on a case by case basis. So, I don't think there's ever been a rejection of the tiered approach. The tiered approach was considered to be suitable and then it seems to be, was abandoned for simplicity more than anything else. So, I endorse what Mr Moir said there.

PN158

The other thing that I'd like to say with respect to my client is that the point was made by Transit that there are other employees, not engaged on a copied state award. They're subject to an EA with only one increase per year. That is the same at Busways. So, Busways has employees engaged under the copied state award. It also has employees engaged under an enterprise agreement, which like the copied state award has set increases and those employees are not subject to any additional Fair Work Commission increases. I'll just give you the reference number for the agreement, for the record, so you have it. I hope I've got these right. I think it's AE513529 and I've also got a print reference which is 734927 and in case all of that fails, it's the Busways Driver/Mentor Enterprise Agreement 2021 which applies to all employees engaged in this region of the Sydney Bus Network which is region 7 who are not employees that transitioned over from the STA. So, the submissions that were made by Transit about disparity and treatment apply equally to Busways.

PN159

They, Commissioner, were the submissions I wanted to make in addition to what we filed to date.

PN160

THE COMMISSIONER: Good, thank you, Mr Izzo. Mr Price.

PN161

MR PRICE: Yes, thanks Commissioner. Parties will take as read, of course, the submissions filed on behalf of Keolis Downer on 1 April and 1 June and draw one point to your attention, which is already made in paragraph 22 of the submissions of 1 June. That is that the submission made by my client in paragraph 10 of its 1 April submissions is withdrawn. That is, in relation to there being a top-up. That was done on an expectation that there would be a submission that any wage increase would simply be added on top of the copied state instrument rates. As you know, the submission was made, the reason for that submission being made in paragraph 10, the 1 April submissions is withdrawn and no longer maintained.

PN162

I know the timing expectations you have, so I don't intend to repeat anything which has already been said before and I'm conscious of allowing Ms Saunders to get to the next commitment. I will simply make these points by way of summary emphasis. Keolis Downer doesn't argue for an infinite exemption from any wage review and I don't think any of the other employers does. We're all just talking about this particular annual wage review. The annual wage review next year will no doubt have regard to the then applicable circumstances including wage rates and enterprise agreements which exist.

PN163

But we do so that by providing – by considering and putting in place an increase for the wage rates in this year's annual wage review, the Commission would be doing something other than maintaining a safety net of fair minimum wages. It would risk de-emphasising the objective in section 3(f) of the Act, that is the objectives of achieving productivity and fairness or an emphasis on enterprise level collective bargaining. So, they're the two simple points that I wanted to make and I don't intend to repeat anything which has already been made in our submissions and I embrace a number of the submissions which Mr Izzo has made in relation to the history of the New South Wales bargaining and how those rates came to be put in place. Thank you.

PN164

THE COMMISSIONER: Thank you Mr Price. Ms Beaman.

PN165

MS BEAMAN: Thank you, Commissioner. Transdev has obviously also filed two submissions in this matter, initial submission dated 1 April and a submission dated 1 June in response to the Commission's background paper. But it also relies, of course, on their submissions in support of its position. We've also been aided by the submissions of the other operators that have been filed, as well as made orally today. So, in light of those extensive submissions, we also don't intend to repeat the matters that have already been addressed today.

PN166

There's just one matter that we do wish to clarify. Having considered the submissions that have been filed by the other operators in response to the background paper, it's clear that there is consensus amongst those operators that no annual wage increase should apply to the respective copied state awards. Transdev had made in its submissions on the background paper, submissions in response to the query on the top-up approach referred to by the Commission. Those submissions were made only in the event that the Commission rejects the operator's primary submission that no wage increase should flow, and in the alternative, to a full annual wage increase being applied to the copied state awards.

PN167

So, Transdev maintains its submissions that applying any annual wage increase to the copied state awards, including on the basis of the top-up approach, is inconsistent with the minimum wage's objectives and the broader legislative framework for the reasons that have been outlined at length. Transdev's view is that the top-up approach doesn't ameliorate those concerns. They're the submissions of Transdev, thank you.

PN168

THE COMMISSIONER: Thank you, Ms Beaman. Ms Saunders.

PN169

MS SAUNDERS: Thank you, Commissioner. There are, of course, a number of applications before the Commission, that can be grouped in really three categories. Firstly, Transit Systems application in respect of the retrospective variations. Secondly, what Transit Systems says apparently, in the alternative should happen in respect of its awards this year, and thirdly the position put by Keolis Busways and Transdev, which is broadly consistent, although a slightly harder line on topping up from Busways. We agree with the summary of the union's position as set out in the background paper, and I don't intend to repeat what's set out in the written submissions. There are just a few minor points of emphasis.

PN170

Starting with the question of retrospective variation, it is important to be very very clear on what Transit Systems is, as a matter of law and a matter of practicality asking the Commission to do. It is asking it to vary decisions made in 2018 and 2019 reviews, to exclude its awards, its copied state awards only, from wage increases previously determined. It's been found by the Federal Court to have contravened these instruments and it is asking the Commission to excuse it from the consequences.

PN171

In practical terms, it is asking the Commission to reduce the minimum wages payable to its employees, to move them backwards from what they are presently entitled to and what they are presently being paid. It's avoided saying this directly in its written submissions and what my friend has put today, but the idea that there's no risk of a claw-back is wrong. At the very least, if Transit Systems is successful, employees will see their wages drop, which is a surprising outcome for an annual wage review in the current climate. And Transit Systems has not said what it will do about the amounts it has been paying since December. If the variations are sought to have retrospective effect, there is a real apprehension given the total failure of Transit Systems to address this. But what will become technical over-payments will be clawed-back. That is highly undesirable.

PN172

Of course, the written submissions are made in times of high outrage. The Commission has heard about windfall gains and justice and deviating from bargains. Transit Systems, nevertheless accepts no responsibility from its own conduct. It has never explained, put on evidence explaining why it did nothing until 2021, until the union became aware of the issue.

PN173

Mr Moir has said a lot from the Bar table today, but Mr Sinclair is the one that needed to explain that silence, and he says nothing, and no position was advanced before the Federal Court. I don't need to take the Commission to those decisions, but Justice Rares in the first decision says nothing of the kind that was advanced today. It is unclear whether it was neglect, or whether it was simply pursuit of a legal position that turned out to be wrong. Neither are particularly meritorious.

PN174

The approach also assumes that if Transit Systems had approached the Commission in both of those annual wage reviews, it would have got what it wanted and what it seeks now. Of course, that's not certain. The tiered system didn't slip out as an afterthought, it was considered and found to be inappropriate by the Commission. What's been said about the relevant annual wage decision is – somewhat mis-states the actual finding. The citation is (2018) FWCFB 2 @ paragraph 43. The Bench's consideration on the matter is set out. I won't read it to the Commission, but it is a positive finding that the annual wage increase would generally apply to copied state awards, absent persuasive reasoning otherwise. It's not – we don't know how many there are, we don't know what the situation is. It's a deliberate decision to make that change.

PN175

It was a remarkable proposition what Transit Systems has come forward to ask for to ask for. Even more so, given the way it's conducted itself subsequently. When it did become aware of the entitlement, there was a deliberate decision not to pay. Deliberate rejection again in bargaining which matters, given what's been said about enterprise bargaining, as a reason here. It needs to be considered in that light. It's not an administrative correction. It was a substantive interference and substantive rights that employees presently enjoy.

PN176

There are two issues; the first is of course, that properly interpreted, the decisions are in fact made under part 2(6). This is very simple. The Schedule 9 of the transitional provisions simply expands the powers that are available to the Commission when it is conducting annual wage reviews under part 2(6). The forced interpretation that it somehow stands alone, despite being wholly integrated into the Commission's decision-making process in the reviews, isn't a sensible reading of the text, and you do have to read these pieces of legislation as a whole, as part of an integrated scheme. That scheme involving these awards being considered and decisions made about them in the annual wage review under part 2(6).

PN177

The reason section 603 excludes part 2(6) decisions from the Commission's general power to revoke or bury its decisions is obvious. These are decisions that necessarily create substantive rights. The certainty is critical and that logic applies in exactly the same way to copied state awards. There's nothing unusual about them being treated in the same way. What that means, even if the Commission is against me on that point, and the power is theoretically available, it very much arises as a lacuna in the legislation. I've set out in some detail in the first set of written submissions the authorities that apply to applications for retrospective variation. The fundamental principle is, yes, of course, it is available, it's part of the Commission's powers to correct procedural deficiencies, matters like that, but it should not be done, and arguably cannot be done, as a proper exercise of discretion where it unpicks substantive existing rights or it changes what employees are entitled to be paid. It would be contrary to all principles to retrospectively vary the decisions in this way.

PN178

That is not something that Transit Systems has ever addressed in its submissions, how it engages with those principles. The reasons it does advance in respect of discretion really distil to a sense of dissatisfaction with the outcome. Plainly it's a strongly felt dissatisfaction, and that emerges both in Mr Sinclair's statement here and the evidence that is set out in the second judgment of the Federal Court, but what the Commission doesn't have is any evidence as to viability, any evidence as to competitiveness, any evidence as to the particular contractual arrangements this company has with the state government to run its buses, the actual effect, and, as I have said, no evidence as to why.

PN179

It is asking the Commission to cut its staff wages. These are not high paid workers to begin with. As Mr Izzo has taken the Commission through, some of them are low paid in respect of the metric that the Commission sets. Of course, that threshold of low paid is an arbitrary line - one has to draw it somewhere - but the rest aren't particularly high above it. With the exception of the higher classes of the salaried officers award, the bulk of the workers, we are not talking about particularly high paid employees.

PN180

It is a proposition that will create - I don't mean this to sound as a threat, it's just reality - it will create absolute industrial chaos on a wide scale if it's implemented, a massive pay cut for Transit Systems employees. I see my friend shaking his head, but that's the order that's being sought. If Transit Systems doesn't intend to enforce it, why seek it?

PN181

That's all I wish to say about the question of retrospective variation, unless there was anything the Commission had.

PN182

The second point is Transit Systems' alternative position, basically that its awards, the ones applying to it, should not be increased at all this year. These employees have not received a wage increase in the last 12 months. There's no issue of double-dipping in that sense. What is sought is basically compensation for having to rectify previous underpayments which arose through mistake or inaction - it's unclear which.

PN183

It does ignore in the submissions, when it's talking about the - it is an inconvenience of a large underpayment being discovered and orders being made requiring it to rectify it. Of course, what Transit Systems hasn't addressed is the benefit it's enjoyed. It has escaped paying the correct wages for two to three years. It had to be forced to rectify the issue and not just by a strongly-worded letter - genuinely dragged.

PN184

The application, all it does is - and I do take it that it's made in the alternative, but it's a proposition put forward if the Commission is not minded to vary the awards. My friend is shaking his head. I take it that they are both advanced. That's even more outrageous. The idea would be that these employees do not receive an annual wage increase for this year for no particular reason, as well as escaping the consequences of the underpayment that Transit Systems has been found to engage in.

PN185

That is a bold claim. It is seeking a reward for initial negligence followed by subsequent conscious behaviour. An executive wrote down the phrase 'wage theft' in an email at a point where they were still pursuing an option not to pay even the increase that it was acknowledged that they had to pay. It's remarkable. We see that evidence extracted in the second decision of Rares J.

PN186

There have been some strongly-worded submissions made in writing about industrial justice, but I mean both those applications being advanced in concert looks like nothing more than greed. These workers are subject to the same inflationary pressures as any other employee in Australia. The matters that have been advanced by my client unions in the substantive annual wage proceedings apply equally to them, as do the matters advanced by the ACTU. There is no justification for the real value of their wages being allowed to degrade, even if they were fairly set in the first place.

PN187

There are three matters other than this sort of generalised dissatisfaction raised. The first is bargaining and the apparent effect that the decision really of Rares J and the last year's increase has had. Bargaining is happening at Transit Systems and it will be ongoing. What the evidence actually distils to is that workers are using their collective muscle, both sets of employees this time, to seek wages and conditions that are more generous than what Transit Systems wishes to provide them, and they are doing to by putting logs of claims forward, taking industrial action, not agreeing to initial (indistinct) offers. That is what collective bargaining is.

PN188

What is really being sought here by Transit Systems is more leverage over its employees. The submission is that it disincentives employees taking an offer. That's a completely different proposition to what the Commission is considering in terms of effect on enterprise bargaining. Advantaging the bargaining position of a particular employer is not what's really being sought and it's not a proper basis to vary existing rights.

PN189

The phrase 'industrial bargain struck' has been used as well, a second matter. The first thing to say about that is describing a wages outcome in a New South Wales state award made in the last decade as the product of bargaining is nonsense. Wage fixing has utterly ossified in that jurisdiction. These awards have just simply not been considered in that period of time.

PN190

My friend, Mr Izzo, took the Commission to some sections of the Fair Work Act. It does mirror other jurisdictions, but it has one key difference and that's section 146(c), which constrains the Commission's power to make certain awards. It is subject to the Industrial Relations )Public Sector Conditions of Employment) Regulation 2014, which includes what is generally described as the 2.5 per cent wage cap. The STA didn't sit down and negotiate these awards in terms of the wages; they applied in a routinised way the state government's wages position, and certainly the idea that the Commissions have value-added them in recent years is unsustainable.

PN191

This is connected to the relevance of the modern award, the idea that these workers should properly be covered by that. Mr Izzo's submissions very helpfully identify the key reason why that's not so. The common rule award, if we're still calling it that, that applies to all bus drivers is not - those rates are not assumed to be properly set at all - isn't necessarily appropriate for a particular specific enterprise operating in a particular specific way. These wages have been fixed at some point, admittedly in the distant past, with regard to the actual work performed by these actual bus drivers, which is the same work that they continue to perform now, albeit for private companies. Those wages are appropriate and they decline in value, real value, over time.

PN192

The real difficulty with the submission that the only thing the Commission should have regard to is the modern award and it should be assumed that the modern award conditions apply and anything else is a bonus, if the legislature wanted these employees to be protected only by the Commission's modern award, this entire section of the Act wouldn't exist.

PN193

It's been specifically brought in as a specific amendment to existing legislation to roll in existing conditions set at a state level, which are notoriously different from commonwealth wage-fixing principles, and a strong departure since about 2000 really. They have been uplifted and there is a specific decision by the legislature for those to be considered in the same process where annual wages are increased, in the same process where the annual increases applies to minimum wage, and varied.

PN194

If the idea was just a safety net and fall-back, we wouldn't be troubled with this. It's not so much that it's complicated; it's just that it's badly drafted really. We wouldn't be trouble with this, but we are. It's a specific legislative intention that means this entire proposition put forward that one only considers the modern awards falls away.

PN195

There is a related point that Mr Izzo brought up, but we do say the modern award objective applies. It's not of particular significance, and I don't think the Commission needs to trouble itself with the interpretation exercise. Even if it doesn't, it's a useful - you would apply those principles in the exercise of the discretion anyway. There is no particular reason to treat them differently, but very little turns on it in any event.

PN196

That's all I have to say about the Transit Systems' approach. It's strayed into some of the overlap with the other matters.

PN197

As to Transdev, Keolis, Busways, something to remember and something that has been absent from every submission made is these employers are all in a particular situation and a peculiar situation. They hold government contracts to operate government-employed buses, a condition of which is that they continue to employ previously government employees. They're funded out of - these operations are funded out of state revenue. With the exception of one company who's provided a redacted version - and it escapes me which bus company it was - but there is very little information about the contractual arrangements and the funding arrangements. What it means is all that's been said about the lengthy discussions about how this puts them at a competitive disadvantage to presumably not one another in the tendering process but to private operators who operate quite different bus systems in quite different areas of New South Wales.

PN198

It doesn't flow. It's not an apples to apples comparison. Various matters raised about economics and the general merit of wage increases: as I've said, they follow in both directions. The employer and union submissions made in the annual wage review and there's no reason to treat these employees differently. It doesn't warrant separate consideration. The final point is double-dipping, which the enthusiasm has dropped from two of the bus companies today. I think we all agree on the mathematical approach that the Commission should take if (audio malfunction). One thing to remember about that a lot has been said - there's been a wage increase in the last six months, in the last 12 months as well as not really knowing what component in there is for inflation and the difficulties that arise after a decade of wage stagnation in New South Wales.

PN199

It's only double-dipping if you get it twice and so if you remove the additional increase, that problem falls away and accordingly, none of the submissions about that vice address the union's actual position in respect of these awards, which is only bringing these workers up to where everyone else is following the Commission's consideration of the appropriate increase in the present economic circumstances. Unless there was anything further, that's all I had to say.

PN200

THE COMMISSIONER: Yes, Ms Saunders, just two matters: one goes to the nature of the (indistinct) awards and in particular those arising from the New South Wales Commission. Firstly, look, I understand the issue about these would be considered to be paid rates awards. Of course actually I'm old enough to remember when paid rates awards were a minimum-maximum legal obligation. Interesting notion in the current setting.

PN201

MS SAUNDERS: Yes.

PN202

THE COMMISSIONER: So putting the terminology aside, it would seem to me there is some substance in the fact that these are enterprise awards. They do have a different character about then in that the New South Wales system is still a dispute-based system with awards resolving disputes which goes back to the pre-Fair Work arrangements in the common law system. it seems to me that there is some relevance to the fact that awards coming from the New South Wales Commission have a different character about them. I do accept the issue about the cap.

PN203

I understand that but I think notionally at least the awards on the New South Wales Commission bear some characteristics, at least, of enterprise agreements and some characteristics of awards in the federal system. So I just wanted to get your view on that.

PN204

MS SAUNDERS: They do, and part of that is notwithstanding the dramatic imposition of a wages cap the system has sort of trundled along in mostly the same way at least in terms of its effects. Of course there is rollover awards (audio malfunction). Where they differ from enterprise agreements is enterprise agreement wages are set partly people agreeing what's appropriate but partly just as an exercise of relative strength. So there are components that are simply won through industrial action or in very rare circumstances, I suppose, decided in the Commission in a determination that this is the appropriate amount. That doesn't happen in these awards.

PN205

It may have historically but there is - the rates remain what they are and the real issue is the degradation in real value over time as inflation drags the real value down. That moves from away from any position where they might have been fair and reasonable to begin with and it's that critical difference in bargaining power, remembering that a factor of the New South Wales Act is an unfettered ability to stop industrial action at any time, rather than the protection scheme that one sees in the federal system, although notwithstanding the recent decision of several public sector unions to ignore that as a matter of practicality it means that what awards contain and how the rates are figured differs from enterprise agreements because of that limitation on workers' ability to exercise a particular form of bargaining power.

PN206

It also means the rates are likely to be appropriate for the enterprise and adjustments taking into account the economic factors which drive wage growth remain appropriate.

PN207

THE COMMISSIONER: All right, thank you. So the second issue arises in the context of trams systems retrospective (indistinct). So when I look at the second decision of Rares J in my experience at least it's very unusual for a federal court - indeed any court - to effectively not make an order of the kind that was sought by one of your clients, at least, and deliberately stay those proceedings for the expert panel to make a decision. Now, in my experience that's quite unusual. Generally a court would presume the regularity and enforceability of the instruments and were (indistinct) of the fact of the proceedings going on before the tribunal whereas in this case a decision was made to do that.

PN208

So I wonder what you say about that, because obviously Mr Moir has put emphasis on that and on face value this certainly is in my experience a relatively unique - - -

PN209

MS SAUNDERS: Almost entirely, almost entirely unique - it is a step away from established principle, as Rares J explores in the latter half of that decision. This entirely unique principle factor - would your Honour bear with me one moment while I just pull that decision up?

PN210

THE COMMISSIONER: Yes.

PN211

MS SAUNDERS: Yes, the critical finding is at - the critical reason for his Honour's finding to make what is quite an unusual order is found at paragraph 56 and it's the risk of employees having to repay or have amounts set off. His Honour doesn't put it higher than a risk. I would observe that it is very difficult to see how money paid pursuant to an extant court order could be recouped but that was the position advanced at trial and his Honour's accepted that that risk, because it is so undesirable for any worker the particularly unique position of orders affecting employees but these not particularly well paid employees, that's the motivator.

PN212

So it's a practical decision rather than - certainly not an expression in any way as to the likelihood of the Commission granting relief.

PN213

THE COMMISSIONER: Thank you very much, Ms Saunders.

PN214

MS SAUNDERS: May it please.

PN215

THE COMMISSIONER: All right, so replies, I expect - Mr Moir, you might want to reply but you in fact - a clarification is directly sought. Anyone else that wants to be heard, Mr Moir.

PN216

MR MOIR: Yes, thank you, Commissioner. I just have six points in response. Firstly, in respect of the basis of the stay that was granted, it's not purely limited to the matter that my friend referred to: namely the practicality of avoiding a situation in which monies have to be clawed back from employees. The court would not have granted such an extraordinary stay if it did not think that there was an arguable case to be made to the Commission for an adjustment in its previous decisions. Now, the judge carefully did not involve himself in that territory except to note at paragraph 57 of his 4 April decision that there are arguments as to whether the Commission has power to make such a decision.

PN217

Transit Systems did submit to Rares J that in its view the Commission had the power to make such a decision because its decisions to vary the copied state awards were decisions made not under part 2(xi) but under the transitional act, under item 20(i). That was the submission that I made to his Honour and his Honour was ultimately persuaded to grant a stay which, as my friend acknowledges, is an extraordinary measure. So - - -

PN218

THE COMMISSIONER: Mr Moir, that element doesn't feature in the decision. That is not as a motivating factor. It might well have been advanced but I've said it doesn't look like the Judge actually entered the field, and it would have been premature to do so, I suspect.

PN219

MR MOIR: I think that's why he doesn't enter into it, because it's not his role. But that doesn't diminish, obviously, the point that's implicit in the decision that his Honour would not grant a stay of this nature, unless he thought that there was some arguable case to be made that the Commission had the power to revoke its earlier determinations. I think my instructing solicitor is forwarding to you, Commissioner, a copy of the orders that were made by Justice Rares. Those orders reflect the stay mechanisms that I referred to earlier in my submissions.

PN220

The second point is regarding whether Transit Systems has explained its own conduct. I have explained in some detail, the conduct of Transit Systems. Granted, it's not in the form of a witness statement but in substance my friend doesn't take issue with it, other than to complain it's not in a witness statement. The history that I referred to is unarguable. I took you to clause 15.2, as well as clause 15.1. You don't need that to be included in a witness statement to draw an inference as to the nature of the agreement that was struck by the union with the State Transit Authority.

PN221

You don't need evidence to see the complexity that's involved in determining whether Transit Systems was liable to provide wage increases under the 18-19 decision, and the 19-20 decision. That's self-evident from the liability decision of Justice Rares. Just Rares, himself, identified the considerable complexity involved in determining the matter. And you don't need evidence to understand the timeline in that the potential liability under those decisions was never raised until last year when these proceedings were commenced in the Federal Court. That's just unarguable fact.

PN222

You also don't need evidence to the effect that there were no penalties imposed in respect of Transit Systems' failure to provide the wage increases under the 18-19 and 19-20 decisions. You don't need evidence that the union agreed not to pursue penalties in respect of those matters. The Commission can readily draw the inference from the absence of any penalties being imposed, again a very unusual circumstance for penalties not to be imposed, the Commission can readily draw the inference that there was no basis for penalties to be imposed by reference to the conduct of Transit Systems. In other words, the union recognised in not pursuing penalties in respect of the 18-19 and 19-20 decisions, that essentially there was no wrongful conduct on the part of Transit Systems. If the union thought otherwise then it no doubt would have pursued penalties. But it didn't, it chose not to and the court approved of that course of action.

PN223

In respect of a third matter, which is that my friend's use of colourful language that Transit Systems is advancing extraordinary arguments and with high outrage, that it's asking the Commission to reduce the lawful entitlements of its employees, Transit Systems doesn't use that sort of colourful language. What Transit Systems says is that the Commission is the legislator. The Commission has the power to determine what is fair and just, and it should exercise that power in this case to avoid what would otherwise be a manifest injustice.

PN224

So the Commission is the legislator. That is the power that the parliament has conferred on the expert panel to be the ultimate arbiter or legislator as to the rights and obligations of the parties. It is within the hands of the Commission as to what should be the rights and entitlements of the employer and the respective employees. That's the wish(?), not to decide what are the rights and entitlements but what should be the rights and entitlements of the parties.

PN225

That leads me to the next point that that is, it's said that Transit Systems has not cited any precedence for its so-called extraordinary position that it's seeking to reduce the lawful entitlements of its employees. That submission is just not correct. Transit Systems has referred to previous decisions of the Commission by way of Full Bench decisions in its first outline of submissions dated 1 April 2022. Those decisions are ones in which the Full Bench has adjusted the rights and entitlements of the parties.

PN226

Indeed, in one of those decisions the Full Bench exercised its powers to, in effect, cancel out or overcome the effect of a Federal Court decision. I am referring there to the vehicle industry public holidays case which was referred to at paragraphs 48 and 49 of Transit Systems' submissions. There the Full Bench identified what its task is to do, which is not to be a mere reflection of what happened in the Federal Court, but rather to actually exercise its power to determine what is fair and just. And if that involves creating new rights or altering existing rights, then that is what the Commission should do.

PN227

That's what the Commission did in the vehicle industry public holidays case. It did overcome the effect of the Federal Court decision which found a number of large employees in the vehicle industry, as it then existed here in Australia, were liable for public holiday payments. The Full Bench found that situation witness statement unfair and it modified the rights and entitlements of the parties.

PN228

Another precedent is referred to in the submissions at paragraphs 51 and 52. That's the National Engineering Full Bench decision headed up by Justice Monroe. There were similar submissions made in that case along the lines of what my friend is submitting, that it would be inappropriate to have the existing entitlements of employees altered, or in my friend's words, reduced.

PN229

The Full Bench in its decision examined in some detail, the nature of the Commission's discretion and how it is guided by matters such as fairness, equity and the industrial merits. The Commission takes into account the existing rights of the parties as determined in this case by Justice Rares, but my consider whether in the circumstances, those rights should be altered, left intact, or new rights created. So I'm referring there to the extract from the National Engineering decision at paragraph 51. So there's clear precedent for the approach that Transit Systems is adopting here, albeit not in the context of an annual wage review, per se but there is precedent within the Commission at a Full Bench level for this type of application to be acted upon by the Commission.

PN230

That leads me then to the fourth point which is that the union submits that the copied state award which was originally made in the New South Wales IRC, cannot be said to reflect a bargain made by the employer and the union. Well, again, you don't need evidence about this to realise that the award was made by consent. If we're going to look at what should flow from the consequences of parties' conduct, then one should consider that this award was made by consent.

PN231

The union, it appears, is seeking to escape the consequences of its own consent by suggesting that this does not reflect any sort of a true bargain, well again, the RTBU agree, not only to clause 15.1, it agreed to clause 15.2. It agreed to 2.5 per cent wage increases and then it went one step further and agree to the proposition that those wage increases are in complete substitution of minimum wages decisions. Now the union didn't have to agree to those provisions, but it did, and it should be held to the consequences of its own conduct which is, it should be held to the bargain that it struck.

PN232

Our deferred submissions made about how consent awards of this nature in the New South Wales Industrial Relations Commission don't reflect enterprise bargains, it's a different system, it's a dispute-based system, yet it's clear, and the Commission can take judicial notice of this or its own notice of this, that industrial action occurs in the state system; it occurs all the time. It's done in order to influence negotiations over the making of awards. You only need to have a passing knowledge of enterprise negotiations involving teachers, nurses and other professions in New South Wales to realise that's the case.

PN233

So, this bus operator's award was a consent enterprise of bargain. It's a bargain struck, as Mr Izzo said, peculiar to one organisation, the Stat Transit Authority. It then spun off to a number of other organisations by way of the transfer provisions in the Fair Work Act. But its essential character remains, that it is an enterprise bargain.

PN234

The final point I would just wish to make, is my friend's submission that if Transit System's application in either of its parts is accepted, it will lead to industrial chaos. That really is a bit far-fetched in my respectful submission. It's not a submission that is supported by any evidence and if it was, it would be very surprising. That's probably why there is no evidence to support it. It's just such a speculative and outlandish sort of submission.

PN235

The Federal Court has been mindful to balance the rights and interests of the parties in making its final orders and in my respectful submission, the Commission should not be side-tracked from following that sort of process by those sorts of submissions.

PN236

Thank you, Commissioner. There's nothing further in reply.

PN237

THE COMMISSIONER: Mr Moir, just one matter raised by Ms Saunders about, the indication at least was that a rate has been applied from December and the suggestion is that if your approach were adopted by the annual wage review panel, that would have an impact on that rate. So, I think I don't know whether you want to leave that hanging or not, or whether you have instructions about that.

PN238

MR MOIR: Yes, if I could just have a moment, Commissioner, thank you.

PN239

THE COMMISSIONER: Yes.

PN240

MR MOIR: Thank you for that time, Commissioner. Look, it's a complex matter and it also depends on a number of different scenarios as well. I'd have to get instructions about that, which I can't get now, and perhaps put something in writing to you about that. It may be that off-setting can occur, or not occur. It's just not something that I can answer on the run, as it were, which is a bit like what happened in the Federal Court with working out back-payments and so forth. It's a complicated exercise.

PN241

THE COMMISSIONER: Mr Moir, you appreciate we're working on time frames which are dictated by the statute, not necessarily by the (indistinct). What sort of time frame would you be seeking?

PN242

MR MOIR: Till later today, we could get something to you, Commissioner, and the other parties by the end of today. I note it's now just after midday, here in Sydney. So, we can do that by 4 o'clock do you think? By 4 o'clock I'm told.

PN243

THE COMMISSIONER: All right, thank you very much, Mr Moir. Just arising from Mr Moir's contribution, I have received the copy of the orders made by Justice Rares on 28 April 2022. I don't know, it's probably of concern, yourself, Ms Saunders, whether you want to make any submissions in light of that.

PN244

MS SAUNDERS: I don't have any difficulty with the Commission receiving the orders; they're a matter of public record. I do have a difficulty with the submissions that have been made as to what did or didn't happen in Federal Court. My friend wants to get the transcript before the Commission, that's a different proposition. I won't involve myself in the same way, but I can say there's no finding by Justice Rares as to the existence of an arguable case on this point. The decision simply does not do that.

PN245

Similarly, there is no finding that Transit Systems did not engage in wrongful conduct; we simply do not know. There are matters that could have been and shouldn't have been addressed. But it's otherwise not appropriate to talk about what submissions were and what it might of – what comments were and weren't made from the Bench.

PN246

THE COMMISSIONER: Thank you. Anyone else? Mr Izzo?

PN247

MR IZZO: Yes, Commissioner, if I might, just two points, relatively discrete in reply to the unions. The first is, and this is a very discrete point. There was a comment made almost in closing, by Ms Saunders, about the fact that the legislature had deliberately turned their minds to the unique scenario we're now in to do with copied state awards and that they deliberately intended for them to be part of this kind of annual wage increase process. That's now quite right, and I'll explain why. The distinction is finite, but it exists.

PN248

The first thing, Commissioner, is that the relevant section is section 285 of the Fair Work Act. That is the section that compels the Commission to both conduct an annual wage review of both the national minimum wage and the modern award minimum wages. So, there is a binding obligation on the Commission to review modern award minimum wages, and the national minimum wage. You must review it. Obviously, you don't have to apply an increase, but you must review it.

PN249

Now, that's what the legislature deliberately wants the Commission to focus on each year. You then have the Transitional Act. Now, item 20 of Schedule 9, which as you know, is the section that expands part 2(6) somewhat. It just says that the Commission may make a determination, varying the terms of the division to the state award. Now, I'll come to this, because we've got to remember, it's talking initially about division to the state awards. What it doesn't say is that you must review division to the state awards, it says that you may make a determination varying them.

PN250

So, automatically, there is actually a distinction because there is no obligation to review them, but if you like, you can vary them. Now, we need to remember the division to these states' awards are a peculiar beast all of their own. They came into existence, and I won't bore you with the entire history of it, Commissioner but the Commission may want to turn its attention to this and I think we addressed this in our submissions of 1 April. They came into existence immediately after the transition to the Fair Work regime. They were in existence for a very short period of time. Ms Lawrence will correct me if I'm wrong. I think it might have only been 12 months, or 24 months existence, after which time they were no longer to exist.

PN251

So you had these kinds of awards that were state relics and stayed in the federal system for a brief duration as part of the minimum safety net, and the legislature left open an ability to vary those wages should the Commission choose, but certainly no compulsion to even review them. What then happens is, about a year or two later and I apologise as I don't have the specific dates, but there is a level of anxiety about outsourcing in the public sectors. That is, state governments outsourcing their activities, and private sector operators commencing and transfer of business laws not applying.

PN252

That's what then gives rise to a different part of the act which deals with transfers of business between a non national system employer and the national system employer, and that's what gives rise to the copied state awards. As part of that regime they then need to work out how they deal with the copied state awards' interaction with all of the other provisions of the act, and they give copied state awards the same status as a division to the state award and that's how we end up with the scenario that we're in. And the background paper goes through a fair amount of this, as does our Busway submissions of 1 April.

PN253

The point of all of that is, there's been no deliberate decision to intentionally ensure that there's some automatic review process for copied state awards, none whatsoever. At most, what's happened is there has been an ability conferred on the Commission to vary these awards, should it choose. But there is no other legislative intend needs to be discerned, Commissioner, and so that's the first point of difference I'd like to identify.

PN254

The second is that I suspect that counsel for the unions has engaged in somewhat of a traditional, after all representative, on occasion which is to have one's cake and eat it too. On the one hand it's been put against us that one cannot assume that the wages of the employees under the copied state award have been properly fixed. The counsel for the industries identified section 146(c) of the IR Act and the constraints placed on that with respect of increased wage caps. But almost in the same breath thereafter, when Ms Saunders responds to the issue about the fact that these rates are higher, the point is made, well, you need to understand why they're higher because it's specific to this industry. It may well be specific to these employees. It may well be that this is the appropriate rate for this type of work, by these employees and therefore that they still should be subject to increase yearly.

PN255

You can't really argue both points. Either the rates have been set with regard to the employees or they haven't. We say they have, and in any event I still go back to the actual disparity to make good our position which is, regardless of the fact that for the last few years, and I think Ms Saunders pointed out when section 146(c) came into play, regardless of the fact that more recently there has been a wages cap, the reality is that because of the peculiar circumstances of these parties and the industrial regime they operate under and the enterprise specific nature of the instrument, we have ultimately resulted with wages that are substantially higher than modern award wages.

PN256

So they must be in some way, more specific to these industries because the drivers are doing the very same work. This isn't an industry where there's high variations between the type of work being done. A grade 3 bus drive operating a bus, with more than 25 employees is doing the same work in the modern award as their equivalent is under the copied state award. So we say the disparity itself demonstrates there is a level of enterprise specificity with respect to those instruments. They're the two points that I wanted to make in reply.

PN257

THE COMMISSIONER: Thank you. Anyone further?

PN258

MR PRICE: No, Commissioner.

PN259

THE COMMISSIONER: Ms Beaman?

PN260

MS BEAMAN: No, thank you, Commissioner.

PN261

THE COMMISSIONER: All right.

PN262

MS SAUNDERS: I did have one point of clarification.

PN263

Mr Izzo misunderstands my submission. I must have put it badly. I don't say that copied state awards, there's a mandate to automatically renew them. The point was a shorter one that if the legislature intended the modern award to be the relevant safety net for these workers and there to be no separate consideration, copied state awards would not exist, and the point of the power to review them is based on the existing conditions that they provide, not the otherwise existing safety net.

PN264

THE COMMISSIONER: All right, thank you. So, Ms Saunders, you may not have instructions about this, as well, but just in relation to the fact that Mr Moir is going to organise his client to provide clarification on that issue raised, I think by 4 pm Sydney time today, I don't know whether you're client's going to seek an opportunity to say anything in light of that?

PN265

MS SAUNDERS: I suppose it depends on what's said. I understand that it's responding to the quite discrete question of, does Transit Systems say that this does not lead to a reduction in employee wages. Perhaps if I have till 4 pm Monday to file any short response?

PN266

THE COMMISSIONER: Yes. It might need to be lunch time Monday, I'm afraid.

PN267

MS SAUNDERS: That's fine.

PN268

THE COMMISSIONER: I'm not speaking out of school to indicate that the panel is under incredible time pressures given the general context in which we operate including the statutory requirement, so if you could accommodate that it would certainly be appreciated.

PN269

MS SAUNDERS: Or course.

PN270

THE COMMISSIONER: Very well. Anything further? No? Thank you, all. So firstly, thank you, counsel for your helpful and constructive submissions. Secondly, I'll ensure that the expert panel has the benefit of all your submissions and the relevant materials. The Commission will be adjourned. Good afternoon.

ADJOURNED INDEFINITELY [12.17 PM]