PN1

VICE PRESIDENT HATCHER: Yes, can I take the appearances? Mr Nguyen, you appear for the AMWU?

PN2

MR NGUYEN: Yes, your Honour, with my colleague Mr Miller.

PN3

VICE PRESIDENT HATCHER: Ms Liebhaber, you appear for the HSU?

PN4

MS LIEBHABER: Yes, your Honour.

PN5

VICE PRESIDENT HATCHER: And Ms Daberera for United Voice?

PN6

MS DABARERA: Yes, Vice President.

PN7

VICE PRESIDENT HATCHER: And Mr Rogers, you appear for Babcock Mission Critical Services?

PN8

MR ROGERS: Yes that's correct, your Honour.

PN9

VICE PRESIDENT HATCHER: Does anyone oppose Mr Rogers being granted permission to appear?

PN10

MR NGUYEN: No, your Honour.

PN11

VICE PRESIDENT HATCHER: No? All right, that permission is granted. Is that all the appearances?

PN12

MR C RIDINGS: Ridings, initial C.

PN13

VICE PRESIDENT HATCHER: So who are you appearing for?

PN14

MR RIDINGS: Appearing for Babcock Mission Critical Services assisting Mr Rogers. So I'm from EMA Consulting.

PN15

VICE PRESIDENT HATCHER: All right.

PN16

All right, Mr Nguyen?

PN17

MR NGUYEN: Your Honour - - -

PN18

DEPUTY PRESIDENT HAMILTON: We probably need permission for him as well.

PN19

VICE PRESIDENT HATCHER: He's not appearing.

PN20

MR NGUYEN: Your Honour, if it pleases the Commission I'd propose to allow the Health Services Union and United Voice to put on the record their brief submissions prior to us cross‑examining the witness and then proceeding on to submissions after that.

PN21

VICE PRESIDENT HATCHER: All right.

PN22

Ms Liebhaber?

PN23

MS LIEBHABER: Vice President, Deputy President and Commissioner, I intend to make just a brief submission in this matter on behalf of the HSU. The HSU filed submissions in this matter on 25 January and appeared at the mention on 4 April. Our position has not changed since then. That is we are not opposed to the Helicopter Award, Helicopter Air Crew Award being created however we do oppose the coverage clause in the AMWU's draft award. We are concerned that there is an overlap in the coverage between the proposed award and the already existing Ambulance and Patient Transport Industry Award.

PN24

We submit that if the AMWU's claim is successful then the coverage clause ought to be amended to include the Ambulance and Patient Transport Industry Award in the list of excluded awards in clause 4.2 of the AMWU's 13 April draft. We submit that this change is required in order to prevent an unnecessary overlap of modern awards. This would make it consistent with the modern awards objective particularly section 134(g) of the Fair Work Act. The Ambulance and Patient Transport Industry Award covers employees who perform work on helicopters in the classifications defined in schedule B and listed in clause 14.1

PN25

This includes ambulance officers, paramedics, patient transport officers and clinical transport officers amongst others. As we have argued in our earlier submissions, paramedics as well as other ambulance or patient transport officers working on helicopters may perform the tasks included in the helicopters air crew definitions in clause 17 of the AMWU's draft award including for example search and rescue, emergency medical, rappelling, sling loading, and they may hold aviation qualifications. This is on top of the other qualifications and the work performed in their roles.

PN26

We submit that it is important to avoid confusion about which employees the proposed award is intended to cover. The consequences of misclassifying paramedic, ambulance or other patient transport employees who also work as helicopters air crew could be detrimental to the employees concerned. The minimum base rates of pay under the Ambulance and Patient Transport Industry Award generally are substantially higher than the rates proposed under the Helicopter Air Crew Award. For example the minimum weekly rate in the proposed award for a first year air crew person in clause 18.1 is $882.80 and for a rescue crew person it is $834.40.

PN27

By comparison, under clause 14.1 of the Ambulance Award the minimum weekly wage for a first year ambulance officer or paramedic is $979.60. For a first year patient transport officer it is $911.40. In addition to these salaries a number of allowances apply. This includes a flying allowance which applies to employees who are required to perform duties on board a rotary wing or fixed wing aircraft. They are entitled to, under clause 15.4, 6 per cent of the standard rate per shift or part shift. This currently amounts to $59.57 per shift. So for example if an employee is required to fly five shifts in a week this would amount to an additional $297.85 weekly.

PN28

VICE PRESIDENT HATCHER: So what is the classification in the Ambulance and Patient Transport Award that's relevant?

PN29

MS LIEBHABER: It's the allowance under clause 15.4.

PN30

VICE PRESIDENT HATCHER: No, no, but what classification do they fall in?

PN31

MS LIEBHABER: I believe it's for any employee who's required to perform duties on board an aircraft, so it would apply across classifications as far as I'm aware.

PN32

VICE PRESIDENT HATCHER: Sorry, you said 15.3? So any classification could be required for duties upon a fixed wing or rotary wing aircraft?

PN33

MS LIEBHABER: That's my understanding of this award. So I was not able to find a comparable allowance in the AMWU's draft of the proposed Helicopter Air Crew Award. And finally we note that - - -

PN34

VICE PRESIDENT HATCHER: Do they do - - -

PN35

MS LIEBHABER: Sorry.

PN36

VICE PRESIDENT HATCHER: - - - winching or anything like that?

PN37

MS LIEBHABER: They do, yes.

PN38

VICE PRESIDENT HATCHER: Is that covered by that allowance?

PN39

MS LIEBHABER: I believe that the allowance is just a general flying allowance.

PN40

VICE PRESIDENT HATCHER: Right.

PN41

MS LIEBHABER: Yes. However there is a paramedic skills allowance and a number of other allowances, but there's just one general flying allowance.

PN42

VICE PRESIDENT HATCHER: All right.

PN43

MS LIEBHABER: And finally we note that the AMWU's submissions filed to date do not mention the Ambulance and Patient Transport Industry Award and they do not indicate an intention to cover employees already covered by that award. We also note that the coverage clause proposed excludes the Medical Practitioners Award as well as the Airline Operations Ground Staff Award and Air Pilots Award. We therefore see no reason why the Ambulance and Patient Transport Industry Award should not be excluded from coverage.

PN44

VICE PRESIDENT HATCHER: All right. Ms Daberera?

PN45

MS DABARERA: Yes, your Honour. United Voice's position is similar to the HSU in that we do not oppose the creation of a Helicopter Air Crew Award however we do submit that there needs to be an amendment to the coverage clause set out in the AMWU's draft award to ensure that employees who are covered by classifications in the Ambulance Award are excluded from coverage from the Helicopter Award and namely they would be employees who work in air ambulance services, so ambulance officers, ambulance attendants and patient transport officers.

PN46

The exclusion is necessary because of the unique operating environment of air ambulance services which means that there can be some crossover in the duties and qualifications of ambulance services employees and helicopter air crew, and it's our position that in order to meet the modern awards objective in respect of section 134(1)(g) of the Act it is necessary to have an exclusion clause and to avoid the unnecessary overlap of modern awards which could result in the misclassification of ambulance services employees.

PN47

Ambulance services employees working in air ambulance services need to be highly skilled in providing emergency medical services but also must be skilled and able to work safely within the aerial environment. In a similar way helicopter air crew working on air ambulance services need to be proficient in aviation skills but also provide some medical related assistance to ambulance paramedics and attendants. Some of the medical related duties that may be performed by both include assisting in patient care, assisting in emergency medical interventions, passenger transport, inter hospital transfer of patients, assisting in the preparation of medication, operating some medical equipment, manual handling of patients and by air crew and ambulance attendants and patient transport officers assisting the paramedic.

PN48

Some of the non-medical related tasks which may be performed by both groups include undertaking search and rescue winching operations, rappelling and sling loading. This is apparent when looking at clause 17, classifications, in the AMWU's draft award. It states in 17.1(e) that the classification for air crew person is that:

PN49

They are a member of a helicopter flight crew other than a pilot who is qualified and proficient in the techniques necessary to perform search and rescue, emergency medical, rappelling, sling loading, passenger transport and winching operations.

PN50

And those are the ones that also may be performed by air ambulance officers, attendants and patient transport officers. In terms of qualifications as well between the two groups there can be some crossover. Some flight paramedics also have a Certificate III and Certificate IV in Aviation which is also a key qualification for air crew. Further there's also a qualification for the Mobile Intensive Care Ambulance qualification which is referred to as MICA. That's a specialist qualification that ambulance officers undertake in order to work on air ambulance services. MICA qualified ambulance officers have a Graduate Certificate of Emergency Health Aeromedicine and Retrieval and in the Ambulance Award there is a significant allowance in clause 15.4 for paramedics who possess that qualification. There is - - -

PN51

DEPUTY PRESIDENT HAMILTON: There wouldn't be any reverse problems, would there? Namely the Ambulance Award covering areas perhaps properly covered by a Helicopter Award? I understand what you're saying.

PN52

MS DABARERA: Yes.

PN53

DEPUTY PRESIDENT HAMILTON: But is there any reverse problem either for you or for the other objectives?

PN54

MS DABARERA: From our position there wouldn't be a reverse issue, your Honour.

PN55

DEPUTY PRESIDENT HAMILTON: Thank you.

PN56

MS DABARERA: In terms of the MICA allowance in the proposed Helicopter Award there is a specific allowance for that as well for helicopter air crew who are trained in a certificate with the MICA qualification, and again we say that's an overlap that could result in misclassification. And further, patient transport officers under the Ambulance Award have a Certificate III in Non-Emergency Client Transport which helicopter air crew may also have. One of the concerns we raise regarding misclassification in our written submission dated 14 February 2018 was the risk to the pay of ambulance officers and ambulance attendants.

PN57

We note that since then the draft Helicopter Air Crew Award has been updated and the rates of pay have been changed. However the starting rates and most of the additional yearly rates for rescue crew and air crew persons still fall well below the rates for ambulance officers, ambulance attendants and patient transport officers. For example ambulance officers on air ambulance services are generally paid at a Year 3 rate under the Ambulance Award which is $992.80 per week, and they would experience a significant loss if misclassified.

PN58

DEPUTY PRESIDENT HAMILTON: No one is suggesting I think that any of these people should be covered by the Helicopter Award. I think the submission was - and you can correct me - was that exclusion wasn't necessary.

PN59

MS DABARERA: Your Honour - - -

PN60

DEPUTY PRESIDENT HAMILTON: There's no question of intent is there?

PN61

MS DABARERA: Your Honour, no there isn't a question of intent. There's a concern that if it doesn't contain an exclusion clause there could be misclassification by certain employers given that there is increasing privatisation and contracting out in this sector.

PN62

DEPUTY PRESIDENT HAMILTON: All right.

PN63

MS DABARERA: To continue, the Ambulance Award contains specific and official provisions for employees working in the air ambulance services. The HSU has already mentioned the flying allowance. There's also an allowance for the MICA qualification which I mentioned earlier and, in terms of value, under the Ambulance Award it is worth about - it's $154.28 per week for ambulance officers with over 12 months' experience, and over a year that's approximately just over $8,000. Whereas under clause 19.5 of the proposed Helicopter Air Crew Award the rate is $3,150.50 per year.

PN64

So the overall - if there was a misclassification of ambulance officers, attendants and patient transport officers they would experience a significant loss in terms of pay rates and allowances as the rates contained in the ambulance and patient transport industry are much higher. Our position is that the coverage clause in the proposed Helicopter Air Crew Award should be amended to provide certainty in respect of the coverage of air ambulance services employees, and given the unique operating environment and the crossover of skills that some of the employees have we believe that to avoid any confusion and any potential misclassification, clause 4.2 of any Helicopter Air Crew Award if it is made should be amended to state that the award does not cover employees covered by classifications in the Ambulance and Patient Transport Industry Award.

PN65

COMMISSIONER SIMPSON: Can I just ask is it right to say with the Ambulance and Patient Transport Industry Award that it has been predominantly an award applying to government employees, that work has being been outsourced? Is that what you - in terms of the coverage of the award since it was made in 2010?

PN66

MS DABARERA: It's an award that covers both government services and also contracted out services.

PN67

COMMISSIONER SIMPSON: Okay, that's all I wanted.

PN68

MS DABARERA: Unless there are any further questions, thank you.

PN69

VICE PRESIDENT HATCHER: Mr Nguyen, do you want to respond to that now?

PN70

MR NGUYEN: Yes, if it pleases the Commission.

PN71

VICE PRESIDENT HATCHER: What is the problem with an exclusion for the Ambulance and Patient Transport Industry Award?

PN72

MR NGUYEN: The direct area of overlap I think is at the Certificate III level. So there are Certificate III level classifications in the Ambulance Award which is for non‑emergency transport. That's the clinical transport officer and the patient transport officer, and that's obviously the same qualification level as our rescue crew officers. But our rescue crew officers would obviously be engaged in not just non- emergency transport but also emergency transport. They'd be doing both depending on the tasks that they're given on a particular day. So that's the area of direct potential overlap.

PN73

DEPUTY PRESIDENT HAMILTON: But in principle you don't have a problem with excluding those two - that award?

PN74

MR NGUYEN: Well, as long as it's clear that - - -

PN75

DEPUTY PRESIDENT HAMILTON: In principle.

PN76

MR NGUYEN: - - - the appropriate classification should apply in that circumstance where there's two people with Certificate III level qualifications and it's not clear - - -

PN77

DEPUTY PRESIDENT HAMILTON: So you do want the Helicopter Award to cover some of the ambulance people?

PN78

MR NGUYEN: Where they're - - -

PN79

DEPUTY PRESIDENT HAMILTON: Or you don't, which is it? I don't follow.

PN80

MR NGUYEN: It depends on the particular work and we think that the clause - - -

PN81

DEPUTY PRESIDENT HAMILTON: So you do want it to cover some of the ambulance work, is that right?

PN82

MR NGUYEN: They do do ambulance work, yes, but they don't do the work of ambulance officers, for example, or paramedic officers who have a bachelor's degree or ambulance attendants who have a diploma or - - -

PN83

DEPUTY PRESIDENT HAMILTON: Sorry I - - -

PN84

MR NGUYEN: Yes.

PN85

DEPUTY PRESIDENT HAMILTON: So there's some part of the ambulance work that you want to cover with the Helicopter Award, is that correct?

PN86

MR NGUYEN: That's correct, yes.

PN87

DEPUTY PRESIDENT HAMILTON: Okay.

PN88

MR NGUYEN: And our witness statements do detail where they work side by side.

PN89

DEPUTY PRESIDENT HAMILTON: So there is a basic difference of principle between you?

PN90

MR NGUYEN: Well, I'm not sure that there is. I think there's a difference about the solution. We think that the clause which identifies the use of the most appropriate classification as determining award coverage is the appropriate solution, and that's in every award and we think that's the one that should be used to determine - - -

PN91

DEPUTY PRESIDENT HAMILTON: They don't agree with you I think.

PN92

MR NGUYEN: They don't agree that that's an appropriate solution but that's - - -

PN93

DEPUTY PRESIDENT HAMILTON: They want your award excluded, so there is a basic difference of principle between you.

PN94

MR NGUYEN: Yes, I think perhaps that's correct in terms of the work that our people do. We wouldn't want them - - -

PN95

DEPUTY PRESIDENT HAMILTON: It's only a small group you want to cover isn't it?

PN96

MR NGUYEN: That's right, the helicopter air crew. That's right.

PN97

DEPUTY PRESIDENT HAMILTON: And there wouldn't be many of those would there?

PN98

MR NGUYEN: We estimate that there would be around the figure of 1500, yes. Under 1500 based on our - - -

PN99

DEPUTY PRESIDENT HAMILTON: That's a large amount, 1500.

PN100

MR NGUYEN: It's impossible to drill down further than that is all I can say.

PN101

DEPUTY PRESIDENT HAMILTON: No, no, it's all right. That's okay.

PN102

MR NGUYEN: But the ANSI codes only go down to that level.

PN103

VICE PRESIDENT HATCHER: So would your proposed award result in anybody currently covered by the Ambulance and Patient Transport Industry Award moving over to this proposed new award?

PN104

MR NGUYEN: No, we don't think that that's - - -

PN105

VICE PRESIDENT HATCHER: Well, if that's the case why would you not just exclude the Ambulance and Patient Transport Industry Award from coverage?

PN106

MR NGUYEN: Because there is still - the creation of the award, if it's created, would create that possibility that there is a contest between two particular classifications and we wouldn't want to be out of that contest by an exclusion. We would that contest - - -

PN107

VICE PRESIDENT HATCHER: What do you mean contest? Out of the - yes, that's talking about it in terms of organisational interest?

PN108

MR NGUYEN: No, not in terms of that. Just in terms of the test of which award should apply to the work and we think that the test should be the test that says the most appropriate classification rather than - - -

PN109

DEPUTY PRESIDENT HAMILTON: I think your answer isn't correct. I think you said that you did want to cover the helicopter crew or the ambulance people who are currently covered by another award. That's what you said I think.

PN110

MR NGUYEN: Yes, because our helicopter air crew work alongside the ambulance people.

PN111

DEPUTY PRESIDENT HAMILTON: And you've just said you don't want to do that, so you're having it both ways. So which is it?

PN112

MR NGUYEN: I think perhaps if I explain it a different way. I think maybe we have a different understanding of what I'm proposing. What I'm suggesting is that the helicopter air crew that we're proposing to be covered by our award work alongside ambulance officers and paramedics and so there would need to be an identification of which - - -

PN113

DEPUTY PRESIDENT HAMILTON: And currently they're covered by the Ambulance Award.

PN114

MR NGUYEN: Not our helicopter air crew people.

PN115

DEPUTY PRESIDENT HAMILTON: They're not?

PN116

MR NGUYEN: No. But there might be - - -

PN117

DEPUTY PRESIDENT HAMILTON: Is that agreed or is that disagreed?

PN118

MS DABARERA: Your Honour, generally it depends what the helicopter were doing. But I understand that helicopter air crew generally would not be covered by the Ambulance Award.

PN119

DEPUTY PRESIDENT HAMILTON: Okay, they'd be covered by the Miscellaneous Award?

PN120

MR NGUYEN: That's right.

PN121

DEPUTY PRESIDENT HAMILTON: At present.

PN122

MR NGUYEN: That's right, or there have been examples of using the air cabin crew for the BOOT test. So anyway the area of potential overlap is at the Certificate III level and so there might be an issue there where an employee would have to look at the most appropriate classification, in which case we would say they're engaged in the emergency transport operations then that would be our award. If it's completely non-emergency then the patient transport or the clinical transport officer classification may apply.

PN123

VICE PRESIDENT HATCHER: When you use phrases like "our award" it speaks of organisational self-interest rather than appropriate boundaries for regulation.

PN124

MR NGUYEN: For ease of reference I think that was just a statement in terms of the award that we've proposed as opposed to us having any ownership over the award. The awards are obviously the Commission's awards which the Commission makes and they're creatures of the Commission.

PN125

VICE PRESIDENT HATCHER: All right, so - - -

PN126

MR NGUYEN: In terms of the process, your Honour, if I can just say I think it's appropriate to allow the safety net to be determined for these classifications and then at that point the issue of coverage might be more readily resolved.

PN127

VICE PRESIDENT HATCHER: Perhaps. We'll see about that.

PN128

Ms Liebhaber and Ms Daberera, is that all you wanted to say in respect of the proceedings?

PN129

MS DABARERA: Yes, your Honour.

PN130

VICE PRESIDENT HATCHER: All right, are you going to stay or do you seek to be excused?

PN131

MS DABARERA: We seek to be excused.

PN132

VICE PRESIDENT HATCHER: All right, well you're both excused.

PN133

MS DABARERA: Thank you.

PN134

VICE PRESIDENT HATCHER: All right, Mr Nguyen, so we - I'm sorry, this is your witness, Mr Rogers, so are we ready to call Mr Flanagan?

PN135

MR ROGERS: Yes, and I've got no questions I want to put to him.

PN136

VICE PRESIDENT HATCHER: All right.

PN137

MR ROGERS: But if he can be called to the stand.

PN138

VICE PRESIDENT HATCHER: Can we ask Mr Flanagan in Adelaide to step to the witness box, which in your direction should be at the right‑hand side of the court room. Yes, well, just remain standing and we'll administer the affirmation.

PN139

THE ASSOCIATE: Please state your full name and address?

PN140

MR S FLANAGAN: Steven John Flanagan (address supplied).

<STEVEN JOHN FLANAGAN, AFFIRMED [10.00 AM]

EXAMINATION-IN-CHIEF BY MR ROGERS [10.00 AM]

PN141

VICE PRESIDENT HATCHER: Mr Rogers?

PN142

MR ROGERS: Yes.

PN143

Mr Flanagan, in this matter have you signed a statement last December, 6 December?‑‑‑Yes I have.

PN144

Yes, and you've got a copy of that statement in front of you?‑‑‑Yes I have.

PN145

So that's the statement which is four pages in length and then has three annexures to it?‑‑‑Correct.

PN146

And that's a statement that has been filed in the Commission in these proceedings on 6 December 2017, and that statement is true and correct?‑‑‑Correct.

PN147

I've got no further questions, thank you.

PN148

VICE PRESIDENT HATCHER: All right, the statement of Steven John Flanagan dated 6 December 2017 will be marked exhibit 1.

EXHIBIT #1 STATEMENT OF STEVEN JOHN FLANAGAN DATED 06/12/2017

PN149

VICE PRESIDENT HATCHER: Mr Nguyen?

*** STEVEN JOHN FLANAGAN XN MR ROGERS

CROSS-EXAMINATION BY MR NGUYEN [10.01 AM]

PN150

MR NGUYEN: Mr Flanagan, I want to ask you specifically about the air crewmen and the rescue crewmen, so just putting aside the surveillance air crewmen for the time being. So, firstly with the air crewmen - just let me know if you can't hear me as well. Firstly with the air crewmen they are sometimes required to operate in a bent over position aren't they?‑‑‑Yes.

PN151

And the environment in which they work can be confined and vibrating. Is that correct?‑‑‑Yes.

PN152

They're required to load and unload the helicopter. Is that correct?‑‑‑Yes.

PN153

And unloading may involve lifting bags. Is that correct?‑‑‑Yes.

PN154

And equipment, is that correct?‑‑‑Correct.

PN155

Carrying stretchers?‑‑‑Correct.

PN156

And passengers, is that correct?‑‑‑Define carrying passengers?

PN157

Perhaps on the stretcher?‑‑‑Correct.

PN158

They're required to operate a winch. Is that correct?‑‑‑Correct.

PN159

And they have to pull on cables at times. Is that correct?‑‑‑Correct.

PN160

And they may have to drag or carry a survivor's limp body. Is that correct?‑‑‑Correct.

PN161

And they have to have a level of strength in their arms and shoulders to carry out these tasks. That's correct?‑‑‑Correct.

PN162

Can I take you now to the surveillance air crew. The only fitness requirement they have is the CASA Class 2 medical. Is that right?‑‑‑Sorry, say that again?

*** STEVEN JOHN FLANAGAN XN MR ROGERS

*** STEVEN JOHN FLANAGAN XXN MR NGUYEN

PN163

The only fitness requirement the surveillance air crew is the CASA Class 2 medical. Is that right?‑‑‑Correct.

PN164

So for the sake of comparison or to use as a base line you would consider for the surveillance air crew that's an average or normal level of fitness. Would that be correct?‑‑‑Correct.

PN165

So now comparing the air crewmen to the surveillance air crewmen, in order to perform the air crewman's job and tasks that we spoke about earlier the air crewman requires a higher level of fitness than surveillance air crew, don't they?‑‑‑Correct.

PN166

I just want to turn now to the rescue crew person. So they're also required to operate in a bent over position aren't they at times?‑‑‑Correct.

PN167

And the environment in which they work can be confined and vibrating. Is that correct?‑‑‑Correct.

PN168

They're required to load and unload the helicopter. Is that correct?‑‑‑Correct.

PN169

And the unloading may involve lifting bags or equipment or carrying stretchers or passengers on stretchers. Is that correct?‑‑‑Correct.

PN170

And they may have to drag or carry a survivor's limp body. Is that correct?‑‑‑Correct.

PN171

So they also have to have a level of strength in their arms and shoulders to carry out these tasks, don't they?‑‑‑Correct.

PN172

Distinguishing them from the air crewmen, rescue crewmen are required to have an ability to go down a winch and descend from the helicopter, aren't they?‑‑‑Correct.

PN173

And they're required to have a level of strength and fitness in order to go down the winch. Is that correct?‑‑‑Correct.

PN174

And you require rescue crewmen to also undergo an underwater test, don't you?‑‑‑Define an underwater test?

*** STEVEN JOHN FLANAGAN XXN MR NGUYEN

PN175

The water test that's identified in your statement. If I can take you to your statement, to the second appendix.

PN176

VICE PRESIDENT HATCHER: Which paragraph?

PN177

MR NGUYEN: Annexure SJF2. There's a memo there which was sent by yourself to all company air crew officers and rescue crew officers.

PN178

VICE PRESIDENT HATCHER: So which page is this?

PN179

MR NGUYEN: On page 12. At the top it says there, it's identified that it has been sent to all company air crew officers and rescue crew officers and it's been sent from "Chief air crewman". Chief air crewman, that's a reference to yourself, is that correct?‑‑‑Correct.

PN180

And on page 16 it's identified that there's a water component for RCO only. That means the water component only applies to rescue crew officer. Is that correct?‑‑‑Correct.

PN181

Now comparing the rescue crewperson to the surveillance crewperson, the rescue crewperson requires a higher level of fitness than the surveillance crewperson don't they?‑‑‑Correct.

PN182

Now for air crewmen and rescue crewmen, Babcock doesn't pay them for their time that they spend exercising, does it?‑‑‑I'm not sure.

PN183

Are you aware that Babcock pays a fitness allowance for rescue crew?‑‑‑Yes.

PN184

And that fitness allowance - no further questions, your Honour.

PN185

VICE PRESIDENT HATCHER: All right. Thank you.

PN186

Any re‑examination, Mr Rogers?

PN187

MR ROGERS: Just excuse me for one moment. No, I've got no questions in re‑examination. Thank you.

*** STEVEN JOHN FLANAGAN XXN MR NGUYEN

PN188

VICE PRESIDENT HATCHER: All right. Thank you.

PN189

Thank you for your evidence, Mr Flanagan, you're excused and you're free to go?‑‑‑Thank you.

<THE WITNESS WITHDREW [10.06 AM]

PN190

VICE PRESIDENT HATCHER: All right, so that all the witnesses required for cross‑examination?

PN191

MR NGUYEN: Yes, your Honour. We understand that our witnesses were not required for cross‑examination.

PN192

MR ROGERS: That's correct.

PN193

VICE PRESIDENT HATCHER: All right, Mr Nguyen, can we then proceed for you to tender the statements upon which you rely and I'll mark them?

PN194

MR NGUYEN: Yes, your Honour.

PN195

VICE PRESIDENT HATCHER: So the first one is Stephen Ford?

PN196

MR NGUYEN: Yes, so we'll go from most recently lodged is the statement of Mr Stephen Ford which is dated - - -

PN197

DEPUTY PRESIDENT HAMILTON: 19 January 2018, is that the one?

PN198

MR NGUYEN: 19 January 2018, yes.

PN199

VICE PRESIDENT HATCHER: All right, the statement of Stephen Ford dated 19 January 2018 will be marked exhibit 2.

EXHIBIT #2 STATEMENT OF STEPHEN FORD DATED 19/01/2018

PN200

MR NGUYEN: And Mr Charles William McGregor-Shaw's second statement dated 24 January 2018.

*** STEVEN JOHN FLANAGAN XXN MR NGUYEN

PN201

VICE PRESIDENT HATCHER: All right, the statement of Charles William McGregor-Shaw dated 24 January 2018 will be marked exhibit 3.

EXHIBIT #3 STATEMENT OF CHARLES WILLIAM MCGREGOR-SHAW DATED 24/01/2018

PN202

MR NGUYEN: Attached to our submission from last year we have the statement of Mr William Peter Smits which is dated 15 September 2017.

PN203

VICE PRESIDENT HATCHER: All right, statement of William Peter Smits dated 15 September 2017 will be marked exhibit 4.

EXHIBIT #4 STATEMENT OF WILLIAM PETER SMITS DATED 15/09/2017

PN204

MR NGUYEN: The earlier statement of Mr Charles William McGregor‑Shaw which is dated 12 September 2017.

PN205

VICE PRESIDENT HATCHER: The statement of Charles William McGregor‑Shaw dated 12 September 2017 will be marked exhibit 5.

EXHIBIT #5 STATEMENT OF CHARLES WILLIAM MCGREGOR‑SHAW DATED 12/09/2017

PN206

MR NGUYEN: The statement of Mr Brett Arthur Hoy which is dated 12 September 2017.

PN207

VICE PRESIDENT HATCHER: All right, the statement of Brett Arthur Hoy dated 12 September 2017 will be marked exhibit 6.

EXHIBIT #6 STATEMENT OF BRETT ARTHUR HOY DATED 12/09/2017

PN208

MR NGUYEN: The statement of Mr Steven Guyett dated 20 September 2017.

PN209

VICE PRESIDENT HATCHER: The statement of Steven Guyett dated 20 September 2017 will be marked exhibit 7.

EXHIBIT #7 STATEMENT OF STEVEN GUYETT DATED 20/09/2017

PN210

MR NGUYEN: The first statement of Mr Stephen Ford which is undated.

PN211

VICE PRESIDENT HATCHER: All right, the statement of Stephen Ford, undated, will be marked exhibit 8.

EXHIBIT #8 UNDATED STATEMENT OF STEPHEN FORD

PN212

MR NGUYEN: The statement of Mr Joel Young dated 19 September 2017.

PN213

VICE PRESIDENT HATCHER: The statement of Joel Young dated 19 September 2017 will be marked exhibit 9.

EXHIBIT #9 STATEMENT OF JOEL YOUNG DATED 19/09/2017

PN214

MR NGUYEN: The statement of Mr Brandon Rogers dated 19 September 2017.

PN215

VICE PRESIDENT HATCHER: All right, the statement of Brandon Rogers dated 19 September 2017 will be marked exhibit 10.

EXHIBIT #10 STATEMENT OF BRANDON ROGERS DATED 19/09/2017

PN216

MR NGUYEN: And the final statement is a statement of Mr Andrew Barry Gaskin which is undated.

PN217

VICE PRESIDENT HATCHER: All right the statement of Andrew Barry Gaskin, undated, will be marked exhibit 11.

EXHIBIT #11 UNDATED STATEMENT OF ANDREW BARRY GASKIN

PN218

VICE PRESIDENT HATCHER: Is that all your evidence?

PN219

MR NGUYEN: Yes, your Honour.

PN220

VICE PRESIDENT HATCHER: Yes.

PN221

Mr Rogers, do you want to tender the balance of your evidentiary case?

PN222

MR ROGERS: Yes, there's only two additional statements which we wish to rely upon. There's a statement of Lauren Michelle Adams dated 10 July 2018.

PN223

VICE PRESIDENT HATCHER: All right, the statement of Lauren Michelle Adams dated 10 July 2018 will be marked exhibit 12.

EXHIBIT #12 STATEMENT OF LAUREN MICHELLE ADAMS DATED 10/07/2018

PN224

MR ROGERS: And the final statement a statement of Martin George Mason also dated 10 July 2018.

PN225

VICE PRESIDENT HATCHER: All right, the statement of Martin George Mason dated 10 July 2018 will be marked exhibit 13.

EXHIBIT #13 STATEMENT OF MARTIN GEORGE MASON DATED 10/07/2018

PN226

MR ROGERS: And just to explain to the Commission, there were two additional statements that had been filed on behalf of Babcock. They were a statement of Nigel Edwards dated 6 December 2017. We do not seek to rely upon that, and the evidence - Mr Edwards has ceased employment with the company and so what is relevant in his statement is then covered by the subsequent statements that were filed by Ms Adams and Mr Mason, and then there was also a statement of Andrew Cridland dated 20 April 2018. We don't need or seek to rely upon that because it has been an issue that has been resolved between the company and the AMWU.

PN227

VICE PRESIDENT HATCHER: All right.

PN228

MR ROGERS: Thank you.

PN229

VICE PRESIDENT HATCHER: Thank you.

PN230

Right, so we're ready to move to submissions?

PN231

MR NGUYEN: If it please the Commission, may I request a brief adjournment for us just to digest the witness evidence.

PN232

VICE PRESIDENT HATCHER: All right, how long do you need?

PN233

MR NGUYEN: Thirty minutes.

PN234

VICE PRESIDENT HATCHER: Thirty minutes?

PN235

MR NGUYEN: Thirty minutes.

PN236

VICE PRESIDENT HATCHER: Thirteen minutes or thirty minutes?

PN237

MR NGUYEN: Thirty minutes, if it please the Commission.

PN238

VICE PRESIDENT HATCHER: Thirty minutes. Why do you need that long for?

PN239

MR NGUYEN: Fifteen minutes?

PN240

VICE PRESIDENT HATCHER: All right, we'll adjourn. Can you tell us when you're ready?

PN241

MR NGUYEN: Okay, thanks.

SHORT ADJOURNMENT [10.14 AM]

RESUMED [10.42 AM]

PN242

VICE PRESIDENT HATCHER: Mr Nguyen.

PN243

DEPUTY PRESIDENT HAMILTON: Mr Nguyen, I don't wish to interrupt your stride or anything but having had the benefit of reading all these materials, the employer, the Babcock submission of 6 December 2017 at paragraph 102 has a summary of the issues in dispute and what they want done. So these are obviously live issues. It may not be a full list from your point of view and obviously if it isn't, tell us. But with the addition of the one issue of whether a separate award should be made and if not, should any one of the existing awards, the aircraft crew or miscellaneous or some other award be used for something, so if you add that to this list of items A to O, and I don't want to interrupt your submissions or anything but that might conveniently be a focus of your submissions unless there's some reason why not.

PN244

MR ROGERS: If it assists - - -

PN245

DEPUTY PRESIDENT HAMILTON: Which I don't - - -

PN246

MR ROGERS: If it assists, Deputy President Hamilton, obviously that submission was lodged in December and certainly both the company and the AMWU have had quite a number of discussions subsequently.

PN247

DEPUTY PRESIDENT HAMILTON: So the issues are narrowed, are they?

PN248

MR ROGERS: And the issues are substantially narrower.

PN249

DEPUTY PRESIDENT HAMILTON: Are they? Which ones are no longer - so some of those don't need to be addressed because they've been crossed off?

PN250

MR ROGERS: Exactly. Correct.

PN251

DEPUTY PRESIDENT HAMILTON: So which ones?

PN252

MR ROGERS: I think the process that Mr Nguyen will go through will explain that and in fact even from discussions yesterday there's a couple of others that have also dropped off the list.

PN253

DEPUTY PRESIDENT HAMILTON: So what's left? About five issues?

PN254

MR ROGERS: Correct, or something in that magnitude. Correct.

PN255

DEPUTY PRESIDENT HAMILTON: Subject to explaining what they are I mean, you know, those may well be the focus of submissions. I don't know. Obviously I don't want to interrupt natural justice.

PN256

MR ROGERS: Yes. So I just wanted to point out - - -

PN257

DEPUTY PRESIDENT HAMILTON: We're here for a purpose presumably.

PN258

MR ROGERS: Certainly it's going to be much more truncated than what was in paragraph 102 - - -

PN259

DEPUTY PRESIDENT HAMILTON: What are the five issues that are left?

PN260

MR ROGERS: We can sort of take you through that if you like in relation to Mr Nguyen's - - -

PN261

DEPUTY PRESIDENT HAMILTON: Perhaps someone could just tell me. Presumably you do know all of this?

PN262

MR NGUYEN: Yes, there about seven. Well, we've grouped some of the issues together so I was going to address them as seven issues. Some of the issues involve a number of clauses that have a relationship with each other. So the areas remaining of disagreement include clause 19.6, other required additional skill allowance. The clause 19.7, the fitness allowance. Clause 19.24, income protection. Clause 26.2 in relation to permanent touring, which I propose to deal with alongside annual leave and public holidays.

PN263

VICE PRESIDENT HATCHER: So 19.26 and what was the next one?

PN264

DEPUTY PRESIDENT HAMILTON: It's 19.24 isn't it?

PN265

VICE PRESIDENT HATCHER: The income protection - - -

PN266

MR NGUYEN: 19.24, sorry, income protection. I also propose - - -

PN267

VICE PRESIDENT HATCHER: So which version - - -

PN268

COMMISSIONER SIMPSON: So indemnity is resolved?

PN269

MR NGUYEN: I also propose to - - -

PN270

VICE PRESIDENT HATCHER: Are we looking at the 13 April version?

PN271

MR NGUYEN: I also propose to hand up a new version of the award as well.

PN272

VICE PRESIDENT HATCHER: All right, that will help. I'll start again.

PN273

MR NGUYEN: So parts of it is a bit - if it please the Commission, maybe I'll give that to you now. If I hand that up now it might assist. So it's dated 19 July because that was the date of our last discussions which resulted in this current draft.

PN274

DEPUTY PRESIDENT HAMILTON: So the fourth issue is 26.2, permanent touring. What's the next issue?

PN275

MR NGUYEN: Permanent touring and also annual leave and public holidays together.

PN276

VICE PRESIDENT HATCHER: So just hold on. 19.24, what was the next one?

PN277

DEPUTY PRESIDENT HAMILTON: 26.2?

PN278

MR NGUYEN: Twenty six - sorry, I mean you were correct in identifying that in terms of indemnity there is agreement for a part of the indemnity clause, which is 19.22(a) but 19.22(b) is not agreed. So then 19.24, income protection, is not agreed. 26.2, permanent touring, is not agreed along with annual leave and public holidays. The overtime clauses, 27, overtime days, the rate of 200 per cent and the night shift aspect is not agreed.

PN279

DEPUTY PRESIDENT HAMILTON: What clause was that?

PN280

MR NGUYEN: 27 point - - -

PN281

DEPUTY PRESIDENT HAMILTON: 27, okay.

PN282

MR NGUYEN: Is the overtime days. And in terms of overtime hours that's actually now agreed except for 28.2 which makes a reference to the overtime days clause. So, obviously pending the outcome of the overtime days' clause there might be a consequential amendment to 28.2. And jury service is also not agreed.

PN283

VICE PRESIDENT HATCHER: Sorry, what is?

PN284

MR NGUYEN: The clause for jury service.

PN285

DEPUTY PRESIDENT HAMILTON: What clause is that?

PN286

MR NGUYEN: Which is clause 32.

PN287

DEPUTY PRESIDENT HAMILTON: So those are the seven issues?

PN288

MR NGUYEN: I think that actually counted up to eight. Sorry, I didn't actually count the number before I arrived today. So if I can just quickly just count them to make sure.

PN289

VICE PRESIDENT HATCHER: I think that's eight, yes.

PN290

DEPUTY PRESIDENT HAMILTON: If you go through them, 19.6 is disagreed. Secondly, 19.7, fitness allowance. Thirdly, 19.24, income protection. Fourthly, 26.2 permanent touring plus annual leave and public holidays. Fifthly, 19.22(b). Sixthly, overtime, that's clause 27, days. And 28.2 and then seventhly, jury service provider, clause 32. Is that it?

PN291

MR NGUYEN: That's correct.

PN292

DEPUTY PRESIDENT HAMILTON: Or I missed something?

PN293

MR NGUYEN: That's correct.

PN294

DEPUTY PRESIDENT HAMILTON: That's it?

PN295

MR NGUYEN: So if it please the Commission I just propose to just note that we do rely on our written submissions so I won't repeat a lot of that, what has been said in there from 20 September 2017 and 24 January 2018. And then I was going to also just outline for the areas of agreement just some background about those areas of agreement just for the record and then - - -

PN296

DEPUTY PRESIDENT HAMILTON: Don't you do that in your submissions, or?

PN297

MR NGUYEN: We haven't because the agreement has been reached since the submissions have been lodged.

PN298

DEPUTY PRESIDENT HAMILTON: All right.

PN299

VICE PRESIDENT HATCHER: Just to be clear, when you say agreement you mean agreement with Babcock Mission Critical Services?

PN300

MR NGUYEN: That's right, agreement with Babcock.

PN301

VICE PRESIDENT HATCHER: And how many other employers are there in this industry?

PN302

MR NGUYEN: There are about close to the better part of a dozen but the main operators we consider are CHC and Babcock.

PN303

VICE PRESIDENT HATCHER: And then what has CHC's involvement in this process been?

PN304

MR NGUYEN: I also propose to make a submission about CHC's submissions. They lodged a late submission position I think a fortnight ago, but they've had varying positions about entitlements over the course of the modernisation proceedings. So I was proposing to also deal with their position. They're not here today but have lodged a written submission with the Commission.

PN305

VICE PRESIDENT HATCHER: All right.

PN306

MR NGUYEN: So if it please the Commission then perhaps would you prefer if I just go through the disagreed ones first and then the agreed ones, or just any - the order of the clauses in the award perhaps?

PN307

VICE PRESIDENT HATCHER: It's up to you.

PN308

MR NGUYEN: Okay, I'll turn firstly to clause 18.4 and 18.5.

PN309

VICE PRESIDENT HATCHER: I mean it's up to you but at some stage you'll no doubt address us as to why we should make a new award at all?

PN310

MR NGUYEN: In terms of why the award should be made we have dealt with that in our written submissions and we propose to rely on those written submissions.

PN311

VICE PRESIDENT HATCHER: All right.

PN312

MR NGUYEN: But of course if there's any questions in relation to that I'm happy to answer questions. In relation to 18.4 and 18.5 we wanted to make sure that the various all-purpose allowances are included in these rates of pay and those are listed at 18.7. So the purpose of these calculations will ensure an even flow of pay even where the cycle of work may involve days off, and we understand that those two clauses are now agreed with Babcock. In relation to clause 18.6, ordinary daily rate of pay, the reasons for this clause are the same as for the ordinary hourly rate of pay and ordinary weekly pay. However this clause also serves a purpose for calculating overtime days and we understand that there is agreement in relation to that clause with Babcock as well.

PN313

For clause 19.4 which is the night vision goggle operation allowance we have made a further amendment to that clause. We've revised the words to make it clear that the employer must require the skill to be held in order for the allowance to be paid. There was some discussion and we wanted to make sure that the words didn't only apply where the night vision goggles are actually used because it may often be the case that they aren't actually used for a period of time but the skill is actually required to be held in case they need to be used. So the focus - - -

PN314

VICE PRESIDENT HATCHER: What is the skill?

PN315

MR NGUYEN: The ability to use night vision goggles.

PN316

VICE PRESIDENT HATCHER: And what does that involve?

PN317

MR NGUYEN: Requires a certification. There's a level - there's a certification that is achieved by the helicopter air crew once they have been trained in how to use the night vision goggles.

PN318

VICE PRESIDENT HATCHER: And where do these amounts come from?

PN319

MR NGUYEN: The amounts are originally taken from the CHC Enterprise Award.

PN320

VICE PRESIDENT HATCHER: And why is that appropriate?

PN321

MR NGUYEN: For a long time CHC has been a dominant operator in the industry and the CHC Enterprise Award is a safety net instrument.

PN322

VICE PRESIDENT HATCHER: It's not a safety net instrument, it's a paid rates instrument isn't it?

PN323

MR NGUYEN: No, the rates were adjusted to be the minimum safety net rates through a process in the late 90s, early noughties. So there was an increment remaining from that process of adjusting those rates to become minimum rates.

PN324

DEPUTY PRESIDENT HAMILTON: The old first award principles provided existing rates of pay were relevant. I don't know if that's of any use. That was some time ago.

PN325

MR NGUYEN: In any event what we've done with the minimum rates is actually to align them based on their equivalency to the current minimum rates which are in the award system. So we've aligned them to C9 and C7.

PN326

DEPUTY PRESIDENT HAMILTON: Did other employers pay different amounts?

PN327

MR NGUYEN: The paid rates in the industry are higher than that rates that we propose because we've linked the rates in the award to the current minimum rates that exist in the award system.

PN328

VICE PRESIDENT HATCHER: But in respect of night vision goggles?

PN329

MR NGUYEN: In respect of night vision goggles I understand that that is approximately - if I can take that question on notice. I'll need to just check the variance between what's proposed and what's in the current - - -

PN330

DEPUTY PRESIDENT HAMILTON: That was my question.

PN331

MR NGUYEN: Sorry?

PN332

DEPUTY PRESIDENT HAMILTON: That was the question I asked.

PN333

MR NGUYEN: Right. If I may take that question on notice.

PN334

DEPUTY PRESIDENT HAMILTON: It's relevant for all of your proposals.

PN335

MR NGUYEN: The allowance, the night vision goggle allowance - all of the allowances?

PN336

DEPUTY PRESIDENT HAMILTON: And other amounts you seek.

PN337

VICE PRESIDENT HATCHER: You've explained the basis of the base rates. They're aligned based on qualifications with the general minimum rates framework, but insofar as you seek allowances I think you'll need to explain in each case the basis of the amount and why it's appropriate for a minimum rates award.

PN338

MR NGUYEN: Okay.

PN339

DEPUTY PRESIDENT HAMILTON: And why some other amount isn't appropriate.

PN340

MR NGUYEN: I understand your question, your Honour. I might have to take it on notice but in general terms the allowances are not as pay rates are, subject to bargains and negotiations in enterprise bargaining that may result in inclusions of things that are not directly related to the purpose of that allowance. They're usually related directly to the purpose of the payment for that allowance, of what is taken to be the value of that particular skill as opposed to wage rates which often may take into account productivity gains and other bargains at an enterprise level which are different.

PN341

DEPUTY PRESIDENT HAMILTON: Sorry, are you saying there's no bargaining over these allowances?

PN342

MR NGUYEN: There is bargaining but the bargain is about whether the amount is directly appropriate for what the allowance is being paid for. So that's the principle that we are thinking about. In terms of - - -

PN343

VICE PRESIDENT HATCHER: But if the allowance is skill based why do air crew officers get more than rescue crew officers?

PN344

MR NGUYEN: We hadn't considered that question. If I can take that on notice, your Honour?

PN345

VICE PRESIDENT HATCHER: All right.

PN346

DEPUTY PRESIDENT HAMILTON: You know, you probably need - sorry, I'll wait till you've finished. You probably need to know perhaps whether this would lift actual rates for any employers and whether your other proposals would. Don't you think we need to know that?

PN347

MR NGUYEN: Yes, we had done - from the analysis that I've done my understanding is that it's not going to lift any rates for employers.

PN348

DEPUTY PRESIDENT HAMILTON: So all your proposals won't lift any rates anywhere?

PN349

MR NGUYEN: That's my understanding.

PN350

DEPUTY PRESIDENT HAMILTON: Okay.

PN351

MR NGUYEN: Yes.

PN352

DEPUTY PRESIDENT HAMILTON: Why, because they're minimum rates rather than sort of agreement type rates? Is that the - - -

PN353

MR NGUYEN: That's right, your Honour.

PN354

DEPUTY PRESIDENT HAMILTON: Okay. How do you know that? Have you done surveys? Do you know that from your industrial activities?

PN355

MR NGUYEN: Just from looking - - -

PN356

DEPUTY PRESIDENT HAMILTON: Representation activities.

PN357

MR NGUYEN: Just from looking at the agreements that are available on the Commission's website.

PN358

VICE PRESIDENT HATCHER: So how many employers in the industry have enterprise agreements?

PN359

MR NGUYEN: The client number that we had looked at, I don't have the list with me at the moment but there were a number of agreements that we surveyed in - - -

PN360

VICE PRESIDENT HATCHER: Can you provide us with a list so that we can look at that?

PN361

MR NGUYEN: If I can take your Honours and Commissioner now to clause 19.6 which is the other required additional skill allowance.

PN362

VICE PRESIDENT HATCHER: So just 19.5, why is that by reference to Ambulance Victoria? That is, this is meant to be a national award. That seems to be a state based provision.

PN363

DEPUTY PRESIDENT HAMILTON: I think the Vice President is suggesting you should have used a New South Wales rate perhaps. Is that your suggestion?

PN364

VICE PRESIDENT HATCHER: I'm just wondering why it's a state‑specific qualification.

PN365

MR NGUYEN: There are equivalent requirements in other states but that seemed to be the standard that was accepted.

PN366

VICE PRESIDENT HATCHER: In Victoria.

PN367

MR NGUYEN: Well, by Babcock, that we should use as the reference point. But I understand the issue about the state‑based entitlements which remain - - -

PN368

VICE PRESIDENT HATCHER: And does this create an intersection with the Ambulance and Patient Transport Award?

PN369

MR NGUYEN: I don't think that that creates an intersection because it's a requirement that ambulance - again it goes back to the classifications, which employee is working - what's the classification of the employee performing the work for Ambulance Victoria that will determine what award applies to them. In terms of the actual rate, I did note - - -

PN370

VICE PRESIDENT HATCHER: Sorry, are you saying that there are employees currently engaged by Ambulance Victoria who are not covered by the Ambulance and Patient Transport Award?

PN371

MR NGUYEN: That's correct, your Honour.

PN372

VICE PRESIDENT HATCHER: So who are they?

PN373

MR NGUYEN: Well, that would be our members - - -

PN374

DEPUTY PRESIDENT HAMILTON: They said - we were told that it was the Miscellaneous Award for helicopter pilots?

PN375

MR NGUYEN: That's right, yes. That's what we think it is in the - - -

PN376

DEPUTY PRESIDENT HAMILTON: I think that's what we discussed.

PN377

MR NGUYEN: Either the miscellaneous, yes or the - - -

PN378

DEPUTY PRESIDENT HAMILTON: And you and the other unions are in agreement on that I think?

PN379

MR NGUYEN: Yes.

PN380

DEPUTY PRESIDENT HAMILTON: And basically you want to transfer them from the Miscellaneous Award to a Helicopter Award.

PN381

MR NGUYEN: To a Helicopter Occupational Award, yes. Yes, is that the question that's being asked, your Honour? I think if I can just understand - - -

PN382

VICE PRESIDENT HATCHER: But just so I understand it, what are the employees of Ambulance Victoria who are not covered by the Ambulance and Patient Transport Award?

PN383

MR NGUYEN: Okay, so the same question. So employees of Ambulance Victoria, my understanding is that our members are not directly employed by Ambulance Victoria. They're employed by helicopter service providing employers such as CHC or Babcock and then they are contracted by the ambulance services, either Ambulance Victoria or in New South Wales or in other states to provide rescue or patient transfer services. In terms of - - -

PN384

VICE PRESIDENT HATCHER: So why isn't that work covered by the Ambulance and Patient Transport Award?

PN385

MR NGUYEN: From our interviewing with our members they have never been employed by like ambulance departments or agencies.

PN386

VICE PRESIDENT HATCHER: But you don't have to be, to be covered by that award do you?

PN387

MR NGUYEN: No, I think it's - I guess the issue is that I think it's actually a new type of service that has come about and so - - -

PN388

VICE PRESIDENT HATCHER: I mean if the Ambulance and Patient Transport Award covers persons in the ambulance and patient transport industry, which means the provision of ambulance and patient transport services and education and training, so surely if you're performing a function for Ambulance Victoria whether you're employed directly by them or not, you're covered by the Ambulance and Patient Transport Industry Award?

PN389

MR NGUYEN: In that first part, yes, that would be correct but then the next step would be to look at whether there is a relevant classification that might apply and we would say - - -

PN390

VICE PRESIDENT HATCHER: I mean if we're looking at contractors to Ambulance Victoria in circumstances where the award has coverage for them, why wouldn't we simply adjust that award to make sure that everybody is covered?

PN391

MR NGUYEN: That may be if there is appropriate classifications included in that award for helicopter air crewpersons, I would need to take on notice our organisation's position but I mean just responding to that proposal, it seems like that that is possibly an option. But that wouldn't resolve the entire coverage area that we're proposing the award system take account of because our members don't just perform work for ambulance agencies.

PN392

VICE PRESIDENT HATCHER: I understand that but it just seems odd to me that somebody performing work for Ambulance Victoria would not appropriately fall under the Ambulance and Patient Transport Industry Award.

PN393

MR NGUYEN: Yes, that may be appropriate to include classifications for helicopter air crew in the Ambulance Award.

PN394

DEPUTY PRESIDENT HAMILTON: And you say they're currently covered by the Miscellaneous Award?

PN395

MR NGUYEN: Yes, that's correct because we don't believe that there's an appropriate classification in the Ambulance Award for helicopter air crew.

PN396

VICE PRESIDENT HATCHER: So why is the Miscellaneous Award inadequate?

PN397

MR NGUYEN: There's inappropriate classifications and the Miscellaneous Award is limited in its classification structure. It doesn't take into account the experience that's gained by helicopter air crew beyond their initial gaining of a qualification.

PN398

DEPUTY PRESIDENT HAMILTON: But doesn't the Miscellaneous Award only apply to workers where there's a history of award coverage?

PN399

MR NGUYEN: Yes, that's true there is some - - -

PN400

DEPUTY PRESIDENT HAMILTON: And these are non‑award employees, by your own statement. So they're not covered by anybody at present.

PN401

MR NGUYEN: Except for the CHC Enterprise Award.

PN402

DEPUTY PRESIDENT HAMILTON: Yes.

PN403

MR NGUYEN: There's no industry - - -

PN404

DEPUTY PRESIDENT HAMILTON: So the Miscellaneous Award doesn't apply?

PN405

MR NGUYEN: Well, our understanding is that - - -

PN406

DEPUTY PRESIDENT HAMILTON: Because there's no history of award coverage.

PN407

MR NGUYEN: I'll need to check the coverage clause of (indistinct). I didn't understand that that was - the relevant criteria is about traditionally the award covers - the award excludes people because of the nature or seniority of their role that have not traditionally been award covered, including managerial employees et cetera.

PN408

DEPUTY PRESIDENT HAMILTON: The helicopter people may be covered by state awards, I don't know. I don't know the area. Perhaps you do.

PN409

MR NGUYEN: Firstly, they were covered by the CHC Enterprise Award. Secondly, the qualifications that they're required to obtain are similar in terms of the Australian qualification framework to other - - -

PN410

DEPUTY PRESIDENT HAMILTON: Well, that's not the test. The test is whether there's a tradition of award coverage. If there were state awards there may well be.

PN411

MR NGUYEN: We would submit that that tradition should be interpreted more broadly to include like the types of work that employees are asked to perform and those relative qualifications - - -

PN412

DEPUTY PRESIDENT HAMILTON: I don't think that's what the test says in the Miscellaneous Award. It's different. Perhaps it shouldn't be, I don't know. But it wasn't. It's traditionally the award covered to use a - all right, anyway perhaps you'd like to look at that.

PN413

MR NGUYEN: If I can take that on notice, but we would strongly oppose a definition which would freeze the award system in time without being able to accommodate new types of work at similar qualification levels that may develop in the economy.

PN414

VICE PRESIDENT HATCHER: But is this new work?

PN415

MR NGUYEN: In relation to the history of the modern - - -

PN416

DEPUTY PRESIDENT HAMILTON: It's been around for 30 years.

PN417

MR NGUYEN: - - - award system not having - well, it's not new in the sense that the CHC Enterprise Award has existed for a long period of time and they were the dominant operator in the industry for a long time.

PN418

VICE PRESIDENT HATCHER: And what, they did patient rescue and transport?

PN419

MR NGUYEN: Yes, your Honour.

PN420

VICE PRESIDENT HATCHER: But is patient rescue and transport the predominant area in which these helicopter crew work?

PN421

DEPUTY PRESIDENT HAMILTON: What about tourism and transport? They're huge aren't they?

PN422

MR NGUYEN: There may be passenger transport is what I understand, passenger transport operations as well. That may not be in an emergency situation but the requirement is that they are qualified to conduct both non‑emergency and emergency related transfer of people.

PN423

DEPUTY PRESIDENT HAMILTON: What about agriculture? Don't they use helicopters for mustering and things?

PN424

MR NGUYEN: I wouldn't - - -

PN425

DEPUTY PRESIDENT HAMILTON: I don't know how much. It may be small, I don't know.

PN426

MR NGUYEN: Yes. We don't intend that our proposed award would cover those people. Generally the only relevant award in those circumstances is the pilot. Those helicopters are smaller. Our helicopter air crew are operating generally behind the pilot. Sometimes in the left‑hand position but generally behind the pilot. If I can take the Commission now to clause 19.6, other required additional skills allowance. We had originally proposed to fix an amount for this which was based on the CHC Enterprise Award, however in discussions with Babcock we identified that we're not able to accurately determine the amount without knowing the specific skill that's required. We acknowledge that.

PN427

In Charles McGregor-Shaw's - Willy McGregor-Shaw's second statement of 24 January he describes an example where the employees were asked to undertake a new type of work which was the servicing of aircraft helmets, and the employer sat down with the employees and negotiated with the employees about the appropriate remuneration that might apply for that additional skill and activity that was required of the helicopter air crew. So we changed our clause from a specific entitlement to be a process so there's a process of discussion between the parties, and we've included a requirement in there that the agreement cannot be withheld unreasonably.

PN428

That does leave it a little bit open to a potential dispute between the parties about what is reasonable or unreasonable, but there are examples of the use of reasonableness as a guide for behaviour in the modern award system currently such as in the casual conversion clauses, the reasonable overtime clauses, reasonable - - -

PN429

COMMISSIONER SIMPSON: But that deals with an individual employee as opposed to - I'm presuming what you're saying is if you can't agree you bring a dispute under section 739? That's the way you seem to think it was going to work.

PN430

MR NGUYEN: That's one option.

PN431

COMMISSIONER SIMPSON: But what if you arbitrate the dispute and the Commission is being asked to arbitrate for one employer, how does that work?

PN432

MR NGUYEN: Well, the dispute settlement - - -

PN433

COMMISSIONER SIMPSON: You see, what about all the other employers under the same award?

PN434

MR NGUYEN: The dispute settlement procedure doesn't allow for arbitration under the award.

PN435

COMMISSIONER SIMPSON: Of course, but - - -

PN436

MR NGUYEN: So it's likely to - - -

PN437

VICE PRESIDENT HATCHER: But by consent you can.

PN438

COMMISSIONER SIMPSON: Yes.

PN439

MR NGUYEN: By consent it is possible. We would imagine that if the dispute involves the type of activity that is existing within the occupational industry more broadly then the Commission should be able to have a look at that and it would be open to other interested parties to engage if a variation to the award was proposed to now provide for a new type of skill that's being required to be used by the employees. It that would be a standard process of updating the award to take into account new work that may or may not be required by employers through that process. So the dispute proceedings may lead to a union or a group of employees deciding that they should seek a variation to the award to take into account a new type of work or skills that might be required from changes in the industry. So there are a few other clauses in the award system presently such as reasonable overtime, the - - -

PN440

DEPUTY PRESIDENT HAMILTON: Why do you need 19.6? Isn't that just a variation award? If something arises at some stage, a stocktaking will take place and a new skill will be added or not. Why would you have some sort of odd procedure in there which I don't know what it actually does? Do you want to do that for all the skills across the economy?

PN441

MR NGUYEN: The procedure - - -

PN442

DEPUTY PRESIDENT HAMILTON: Because skills are constantly changing everywhere. Why is this any different to the rest of the economy?

PN443

MR NGUYEN: I can't speak - well, in general terms we propose that the Commission requiring any parties to sit down and have a discussion with each other is a thing that should be promoted by the award system. There should be I think obligations to have discussions with parties of interest and reach agreement where possible, is a positive thing that should be part of - - -

PN444

DEPUTY PRESIDENT HAMILTON: Have they done this anywhere else in the award system where skills constantly change, such as the metal industry or the building industry or is this a unique area?

PN445

MR NGUYEN: We say it's a unique area because of the existence of specific types of changes and skills that may be required such as the example that Charles McGregor-Shaw gave of aircraft helmet servicing.

PN446

DEPUTY PRESIDENT HAMILTON: All right.

PN447

MR NGUYEN: But in general terms the manufacturer classifications are broad banded and are broad enough to take into account and move with the qualifications framework - - -

PN448

DEPUTY PRESIDENT HAMILTON: But you haven't produced another example anywhere else that have done the same thing.

PN449

MR NGUYEN: In terms of requiring parties to sit down, yes there are obligations placed on parties for example in the casual conversion clause requiring the employer and employee to sit down and reach agreement.

PN450

DEPUTY PRESIDENT HAMILTON: No, no, I'm talking about - new skills I'm talking about, not discussions.

PN451

MR NGUYEN: I'll have to take it on notice but in terms of that general principle of requiring parties to sit down, yes, there are obligations under the award system for sitting down - - -

PN452

DEPUTY PRESIDENT HAMILTON: Thank you.

PN453

MR NGUYEN: There are also clauses relating to travel time which is paid for reasonable amounts of travel, reasonable travel entitlements for training purposes. But I do take the point though that in terms of the casual conversion clause it is in relation to an individual as opposed to a collective process, and we have put on the record our concerns about the individual process in relation to casuals because of the difference in their bargaining power as an individual and because of their status, not having the rights of permanent employees, and the feeling of job security that permanent employees have which we have raised as issues in relation to that casual conversion clause.

PN454

But in terms of a collective process for skills we think that those issues don't necessarily arise in the context of a collective process, which we've raised in other proceedings in relation to the individual process. There's also the example in the NES of the request for flexible work arrangements which includes the test of reasonable business grounds for refusal. If I can take the Commission now to clause 19.7 which is the fitness allowance.

PN455

VICE PRESIDENT HATCHER: So where does that amount come from?

PN456

MR NGUYEN: That amount is also taken from the CHC Enterprise Award.

PN457

VICE PRESIDENT HATCHER: I mean there's lots of job functions where fitness is an element. Is there any other modern award which has an allowance like this?

PN458

MR NGUYEN: I'll have to take that question on notice, your Honour.

PN459

VICE PRESIDENT HATCHER: I mean what if you maintain your fitness by doing road running and push-ups? Why do you need $1500 a year to do that?

PN460

MR NGUYEN: Your Honour, our members say that the fitness allowance is predominantly to cover the gym membership which they use to maintain their level of fitness to be able to do the required number of push-ups as well as the pull‑ups and the planks and other tests which are identified in Mr Flanagan's statement.

PN461

DEPUTY PRESIDENT HAMILTON: The police and emergency services might be comparable areas where there's requirements of fitness. I don't know, I'm just thinking aloud. Do they have those clauses?

PN462

MR NGUYEN: It's difficult - I don't know the answer to that question and I will need to check that, but in general terms I think it's the way that different awards are arranged and how their skills are particularly - are compensated. We'll need to look at the specifics of how that takes place. I imagine - - -

PN463

VICE PRESIDENT HATCHER: Certainly firefighters would have very high fitness standards so that might be another one to look at.

PN464

DEPUTY PRESIDENT HAMILTON: But this award will be covering a lot of helicopter crew who only use these extra skills sometimes, you said before didn't you? Tourism and transport awards need these skills as well and there are many of them that they only infrequently would use in an emergency.

PN465

MR NGUYEN: They would - - -

PN466

DEPUTY PRESIDENT HAMILTON: It's not like firefighters whose job is full‑time emergencies. This award would cover hundreds of crew who never get involved in an emergency, wouldn't it?

PN467

MR NGUYEN: We do acknowledge that some classifications don't require a level of fitness which is why - - -

PN468

DEPUTY PRESIDENT HAMILTON: No, no, you told us that tourism and transport helicopter crew need all these skills just in case. I think that's what you said. That's my summary.

PN469

MR NGUYEN: Well, my understanding is that our members predominantly work in the space where they are required to have the emergency related skills but they may also be tasked to do other passenger transfer which doesn't involve the emergency related skills. But because in the work of for example a helicopter service provider they may be task based on whichever task might come into the base at the time, so.

PN470

DEPUTY PRESIDENT HAMILTON: So the point I made is correct, is it, that unlike firefighters who are full‑time emergency workers, these helicopter crews may not be in many cases?

PN471

MR NGUYEN: I can only speak from our experience as representative of our members. My understanding from our members is predominantly they do do the work that's involved in emergency related and they do require the ability - - -

PN472

DEPUTY PRESIDENT HAMILTON: Full‑time or part‑time?

PN473

MR NGUYEN: It's similar to the night vision goggle issue. It's not necessarily about whether you're using the night vision goggles but it's more about your ability to ramp up your body into the state where you can - - -

PN474

DEPUTY PRESIDENT HAMILTON: I think we're going round in circles. You're just repeating. Thank you.

PN475

VICE PRESIDENT HATCHER: If you go to clause 17.1(a) of your proposed award which sets out the categories of helicopter air crew. So, surveillance air crew person, what do they do?

PN476

MR NGUYEN: The surveillance air crew person, they essentially survey and look out across the landscape for information gathering exercises or looking for objects, but they are not required to for example operate a winch or to go down a winch. So their tasks are basically observational. I understand the specific witness evidence that we have in relation to surveillance officers is that they work for the Australian Border Force.

PN477

VICE PRESIDENT HATCHER: Well, I mean the Australian Border Force is separately regulated isn't it, or that's the contract is the Australian Border Force?

PN478

MR NGUYEN: It's the contract to the Australian Border Force and we acknowledge that they do not require the fitness allowance and it has been redrafted to exclude the surveillance officers from accessing the fitness allowance.

PN479

VICE PRESIDENT HATCHER: So what is a - so, presumably a surveillance mission coordinator is in the same category?

PN480

MR NGUYEN: Yes.

PN481

VICE PRESIDENT HATCHER: So what is an air crewperson, singular? I'm just looking at the various categories.

PN482

MR NGUYEN: The air crewperson is usually outside of surveillance missions. They're usually the mission coordinator and they are usually the person operating the winch, not going down the winch and they also - - -

PN483

VICE PRESIDENT HATCHER: Sorry, you've got a rescue air crewperson in the second line and then just an air crewperson at the beginning of the third line. So what is the distinction between a rescue air crewperson and just an air crewperson?

PN484

MR NGUYEN: The rescue air crewperson generally - well, in exact terms they only require the Certificate III whereas the air crewperson will have the Certificate IV. The air crewperson will be more experienced and generally will have been a rescue crew person at some point earlier in their career and then they generally matriculate or become air crewpersons. So it's roughly set out in the order of the hierarchy.

PN485

VICE PRESIDENT HATCHER: Right.

PN486

MR NGUYEN: So surveillance air crewpersons and rescue air crewpersons are the Certificate III's and the surveillance mission coordinator is that additional - if I can use the example of like a leading hand or supervisor.

PN487

VICE PRESIDENT HATCHER: And what is helipad work? The fifth line.

PN488

DEPUTY PRESIDENT HAMILTON: Rappelling, fire bombing and fire mapping?

PN489

MR NGUYEN: Helitak work I understand is work that may be done on a contract with a fire service or an agency or department. So they may be engaged to do those tasks such as fire bombing and fire mapping which - - -

PN490

VICE PRESIDENT HATCHER: So the firefighters award has not classifications to cover that?

PN491

MR NGUYEN: I'll have to take that on notice. I understood that it didn't but I'll - - -

PN492

DEPUTY PRESIDENT HAMILTON: The definition in 17.1(a), the last five words, "or transportation of passengers by helicopter" and in 17.1(e) "air crewpersons must satisfy the requirement" - sorry:

PN493

Air crewpersons are responsible for the passenger's safety during passenger transport operations.

PN494

That's the question I asked before. There's a substantial body of people who would need these skills as a reserve but only as a reserve because they're basically transporting and emergencies are few and infrequent. Do you see? According to your own definitions.

PN495

MR NGUYEN: That's correct.

PN496

DEPUTY PRESIDENT HAMILTON: So a lot of the emergency requirements so-called would be on call or part‑time or whatever you call it.

PN497

MR NGUYEN: That's right. But I think it's self-evident that if you're not able to meet the fitness requirement, if you can't be tasked - you can't be at the ready to do the task that requires a level of fitness.

PN498

DEPUTY PRESIDENT HAMILTON: Well, it's the same with flight crew on planes isn't it?

PN499

MR NGUYEN: They are not required to operate a winch or go down a winch.

PN500

DEPUTY PRESIDENT HAMILTON: There are emergencies and they need to evacuate.

PN501

MR NGUYEN: I think there's - well, I need to take it on notice but I understood that the flight crew - I mean they have different requirements in terms of what's necessary for them to be able to perform their tasks.

PN502

DEPUTY PRESIDENT HAMILTON: All right. But the point is there's a distinction between firefighters who are full‑time emergency operators, that's what they actually do all the time, and these crew who do it sometimes.

PN503

MR NGUYEN: I think there's a similarity in that firefighters may or may not be required to climb up into various locations or be involved in firefighting that involves a use of their fitness all of the time but they are - - -

PN504

DEPUTY PRESIDENT HAMILTON: If they're called out to a fire, they fight the fire.

PN505

MR NGUYEN: That's right.

PN506

DEPUTY PRESIDENT HAMILTON: If these people get in a helicopter, some of them will winch and a lot of them won't do any of that for a long time.

PN507

MR NGUYEN: And they - - -

PN508

DEPUTY PRESIDENT HAMILTON: So it's completely different.

PN509

MR NGUYEN: Well, I think it's about being at the ready, I guess. All I can say is you can't be at the ready to be fit - - -

PN510

DEPUTY PRESIDENT HAMILTON: All right, again we're repeating ourselves.

PN511

MR NGUYEN: Yes.

PN512

DEPUTY PRESIDENT HAMILTON: I don't think we can take it any further. You're not going to concede anything, so that's it. You've made your point and that's fine.

PN513

MR NGUYEN: Thank you, your Honour. If I may just give an example of a person is either able to go down a winch at any particular time or they're not, and it requires a level of fitness. If you're not fit enough to go down a winch you can't be tasked in that operation, which would limit your ability and that's what has happened with the surveillance air crew people, that their job has stabilised into - previously when it first came about they used to do both but then the roles have stabilised to a position where they're no longer required to go down a winch and so - - -

PN514

VICE PRESIDENT HATCHER: So do any helicopter contractors have work where they're called out on an intermittent basis? So like you might do a surveillance job one day but the next day you're called out to do a search and rescue or something; is that possible?

PN515

MR NGUYEN: That used to be the case but what I understand is now the surveillance positions have stabilised, that they're not required now to have an ability to go down a winch or to operate a winch any more.

PN516

VICE PRESIDENT HATCHER: So that's like a full‑time contract, is it?

PN517

MR NGUYEN: It's a full‑time, that they're only doing surveillance and so that's why we say they shouldn't be accessing the fitness allowance. We acknowledge that when someone is working full‑time just doing passenger operations, yes, like we should exclude those people. But I don't understand that that currently exists. But if there is in the future a specific classification for a task that's now stabilised into a full‑time job then of course they would be excluded from the fitness allowance.

PN518

VICE PRESIDENT HATCHER: So does any of the evidence describe the work of helicopter crew who engage in passenger transport?

PN519

MR NGUYEN: Sorry, can you repeat the question?

PN520

VICE PRESIDENT HATCHER: Does any of the evidence before us describe the work of helicopter crew engaged in passenger transport?

PN521

MR NGUYEN: Yes, some of our statements do talk about providing passenger transport but not on a full‑time basis.

PN522

VICE PRESIDENT HATCHER: Do they describe what that actually involves?

PN523

MR NGUYEN: Yes I think they do describe that it will involve the - because there may be passengers, particularly passengers travelling with someone who's in an emergency or medical situation. They're not actually part of the - or not part of the actual task, but family members for example may travel along and so they would be required to give the safety briefing to those passengers prior to the - - -

PN524

VICE PRESIDENT HATCHER: I mean, you're back into the emergency context.

PN525

MR NGUYEN: Yes.

PN526

VICE PRESIDENT HATCHER: But outside of the medical emergency patient transport context.

PN527

MR NGUYEN: I understand that there are for passenger only, that what would be required is the briefing, the safety briefing for the passengers.

PN528

VICE PRESIDENT HATCHER: So for example - - -

PN529

DEPUTY PRESIDENT HAMILTON: There's also offshore drilling. There's a lot of transport to offshore drilling sites.

PN530

MR NGUYEN: That was the - - -

PN531

DEPUTY PRESIDENT HAMILTON: Which are just transport of people.

PN532

MR NGUYEN: Yes, that was - - -

PN533

DEPUTY PRESIDENT HAMILTON: Taking crew in and out.

PN534

MR NGUYEN: That was the context I was - - -

PN535

VICE PRESIDENT HATCHER: Do they use helicopter crew or are they just pilot only?

PN536

MR NGUYEN: They may use helicopter crew is what I understand from speaking to our members, is that there may be helicopter crew in the back who provide the safety briefing.

PN537

DEPUTY PRESIDENT HAMILTON: So there's tourism, there's offshore drilling. Is there anything else in that area? Just do they use it for general transport to Geelong, you know, that sort of thing? I mean does someone sort of go to Wollongong or something by helicopter; is it a transport thing?

PN538

MR NGUYEN: Yes, well there's also non-emergency - - -

PN539

DEPUTY PRESIDENT HAMILTON: Transport.

PN540

MR NGUYEN: - - - transport for the ambulance services as well. So they do some - someone might not necessarily be in an emergency state but they may be transferred from one hospital to another. They may use the helicopter passenger transport service for that as well, which I understand is in one of our witness statements.

PN541

VICE PRESIDENT HATCHER: So presumably for example if one just wants to go for a joyride they wouldn't usually have a helicopter crew, would they?

PN542

MR NGUYEN: Well, yes, it depends on the helicopter operator. That if it's a small helicopter with just a pilot then there wouldn't be helicopter air crew in those circumstances, no. There's some of them where there's helicopter air crew that would be activated.

PN543

DEPUTY PRESIDENT HAMILTON: Right, I don't want to prolong this discussion but a lot of the tourism sites have helicopter services which take tourists around a vista and show them the Blue Mountains or something like that.

PN544

MR NGUYEN: Yes I - - -

PN545

DEPUTY PRESIDENT HAMILTON: So all of the main tourism sites across Australia have that just about, is my understanding, or a fair few of them.

PN546

MR NGUYEN: I'll need to take it on notice but my feeling is that our members are not engaged in those particular activities.

PN547

DEPUTY PRESIDENT HAMILTON: But this award would cover them?

PN548

MR NGUYEN: My viewing is that those helicopters are not of the size helicopter that we actually require there to be air crew in the back of the helicopter.

PN549

DEPUTY PRESIDENT HAMILTON: Right. I don't know, I couldn't comment.

PN550

MR NGUYEN: But we will take that on notice and come back to you on that. So if I could just finish addressing this fitness allowance. I think Mr Flanagan's evidence was that he agreed that there was an average level of fitness required for the surveillance air crew which we are not seeking the fitness allowance for. He did indicate that all air crew are required to undertake a CASA Class 2 medical and he acknowledged that the air crewmen and rescue crewmen require a higher level of fitness than the surveillance air crew. He agreed with the propositions which were in our witness statements including Mr Charles William McGregor-Shaw's second statement which is exhibit 3, at paragraphs 14 and 15.

PN551

In particular Mr Flanagan agreed that they require an above average level of fitness in comparing their level of fitness to the surveillance air crew. Mr Gaskin's statement which is exhibit 11 also details the various tasks that may be required which were also put to Mr Flanagan and which he agreed with. The CHC and Babcock agreements also provide for a fitness allowance and we do submit that it is critical and important for the workers to be able to perform their job and be at the ready when required to exercise a level of fitness, which may not be utilised at all times but may be called upon to be used at short notice, without a period of time to allow them to get fit or to get strong to perform the task.

PN552

If I can take your Honours and Commissioner now to the overseas allowance which is clause 19.9. We understand that this clause is now agreed. We have agreed with Babcock's proposal that the Australian Tax Office taxation determination is used for the purposes of determining the reasonable travel and overtime meal allowance expenses and incidentals. We have also agreed that where an employee gets access to that particular entitlement that they would not get access to the overnight allowance and the meal allowance which is at 19.8 and 19.12 because those allowances are already taken into account in the taxation determination.

PN553

VICE PRESIDENT HATCHER: And why do employees need to go overseas?

PN554

MR NGUYEN: I understand that for example at CHC there were bases in Dili and they were required to operate from that base when they were touring away. I'm not sure if that contract still exists but that's an example of where an employee may be required to go to a base which the operator is operating in a different location outside Australia. If I can take the Bench - - -

PN555

VICE PRESIDENT HATCHER: I haven't looked at the provisions of the Act but a modern award can operate in that context, can it?

PN556

MR NGUYEN: I understand that the Fair Work Act can apply to employees who are engaged by an Australian organisation and whose work - their work may not always involve them being overseas, if they're deployed to an Australian base. And so I understand that their principle contract of employment would be in Australia and would be Australian. I'll take the question on notice - - -

PN557

DEPUTY PRESIDENT HAMILTON: The police have regular operations overseas. Do they have a similar provision to this, or?

PN558

MR NGUYEN: I'll have to take the question on notice in terms of the specific provisions of the Fair Work Act but I understood in general terms that the Fair Work Act can apply for example to locations overseas depending - there is criteria I think it specifically addresses, which I'll need to come back to the Bench on. If I can take the Bench now to clause 19.19 which is the telephone allowance. We have agreed to a new paragraph (c) which provides that if the employer provides a mobile telephone for business use at no cost to the employee, that they satisfy the requirements of this clause and so now we understand that Babcock agrees to this clause with the addition of that paragraph (c).

PN559

If I can take the Bench now to clause 19.22 which is indemnity. We understand that paragraph (a) is now agreed. We have replaced the former words in paragraphs - in the old (a) and (b) with this new paragraph (a) and we understand that that's now agreed. However paragraph (b) is not agreed. Paragraph (b) of 19.23 relates to fines which may be levied by the Civil Aviation Authority. We've added a sentence there to restrict it to the concern that our members have which is where the fine is as a result of the employee following the directions of the employer, to restrict it to the particular area of concern that we have which is if employees are directed to perform tasks which attract fines that they shouldn't be required to pay for those fines.

PN560

VICE PRESIDENT HATCHER: How is this clause authorised under section 139?

PN561

MR NGUYEN: Your Honour, we would say that it's authorised under the allowances which is at paragraph (g) and the fine would be an expense incurred in the course of employment.

PN562

VICE PRESIDENT HATCHER: At paragraph (a)?

PN563

MR NGUYEN: Which is? Sorry, your Honour, which?

PN564

VICE PRESIDENT HATCHER: 19.22(a).

PN565

MR NGUYEN: Of?

PN566

DEPUTY PRESIDENT HAMILTON: The one you say is agreed.

PN567

MR NGUYEN: The effect of the clause is to provide the employee with the amount of money which they would otherwise be required to pay in the course of their employment, in terms of the damage or loss of aircraft equipment.

PN568

DEPUTY PRESIDENT HAMILTON: But wasn't that issue dealt with in the hospitality awards and the restaurants award for deductions for till deficiencies and for breaking glasses and stuff? There was a big argument about that, wasn't there?

PN569

VICE PRESIDENT HATCHER: And it can't be an allowance where there's no payment to the employee, can it?

PN570

DEPUTY PRESIDENT HAMILTON: I think it was taken out, all that stuff. I might be wrong.

PN571

VICE PRESIDENT HATCHER: And the same question might arise in respect of 19.23(a).

PN572

MR NGUYEN: If I can take that question on notice in relation to section 139 and come back to your Honours about that.

PN573

VICE PRESIDENT HATCHER: All right.

PN574

DEPUTY PRESIDENT HAMILTON: Wasn't there a decision that long service leave was an allowance at one stage, which struck me as remarkably elastic? Monroe J I think it was. It was quoted in the award simplification decision and adopted. I don't want to encourage it but that's what happened.

PN575

MR NGUYEN: The next clause is 19.23. We understand that's now agreed. The amount is based on 5.42 times the standard annual wage of a first year air crewperson. What I understand is that this clause does exist in other awards in the modern award system. I've undertaken to come back to the Bench about the section 139 issue or the jurisdictional question.

PN576

VICE PRESIDENT HATCHER: I mean no doubt you can pay an employee an allowance to cover the cost of insurance but this is taking the insurance out directly isn't it?

PN577

MR NGUYEN: The issues in relation to insurance, from speaking to our members and in the witness statements there was an issue about whether employees individually were able to obtain insurance, various forms of insurance related to their occupation and that practically in the market it was only possible for employers to collectively purchase that insurance for the workforce. So it was a practical issue in terms of how this insurance is able to be achieved for employees, given the nature of their work which is high risk, and their ability to purchase that insurance has varied.

PN578

One of our members in the witness statement said he wasn't able to obtain insurance and one member said it was very difficult and quite expensive for him to obtain that on his own. And so that the intention is for the employer to provide an allowance but practically it's actually only possible if an employer undertakes that process of purchasing that collective insurance.

PN579

VICE PRESIDENT HATCHER: I understand that point but then is that a - - -

PN580

DEPUTY PRESIDENT HAMILTON: The point is it's not an allowance.

PN581

VICE PRESIDENT HATCHER: It's not an allowance is it?

PN582

DEPUTY PRESIDENT HAMILTON: What you say doesn't deal with that objection.

PN583

MR NGUYEN: Yes, I do undertake to come back to the Bench about the jurisdictional question about how this entitlement is claimed.

PN584

DEPUTY PRESIDENT HAMILTON: You probably need to redraft it.

PN585

MR NGUYEN: Yes.

PN586

VICE PRESIDENT HATCHER: You say it couldn't be done as an allowance because the individuals can't themselves get the policy?

PN587

MR NGUYEN: It may be difficult in terms of how that allowance is calculated and provided practically in relation to the collective purchase, but I mean there may be other ways to ensure that the clause has practical effect.

PN588

VICE PRESIDENT HATCHER: All right.

PN589

MR NGUYEN: Which we will undertake to come back to the Bench about, and we will consider redrafting the clause as you've suggested, your Honour.

PN590

DEPUTY PRESIDENT HAMILTON: It may not be capable of being an allowance for the reasons already discussed, unfortunately for you.

PN591

COMMISSIONER SIMPSON: Are you saying this is in other awards?

PN592

MR NGUYEN: Yes, your Honour.

PN593

COMMISSIONER SIMPSON: Which ones?

PN594

MR NGUYEN: I understand it's in the pilots and in air cabin crew awards but we need to confirm that.

PN595

DEPUTY PRESIDENT HAMILTON: So if you were part of those awards you'd just use that indemnity clause from those awards. Is that right?

PN596

MR NGUYEN: I need to check the exact terms. I just want to pull up the clause because I think it may be a slightly different clause because we drafted ours taking into account the issues that we had identified.

PN597

COMMISSIONER SIMPSON: Look, that's fine. We can compare them ourselves. Unless you want to make some submission on it.

PN598

MR NGUYEN: I think we - - -

PN599

DEPUTY PRESIDENT HAMILTON: You've got a long list of matters to come back with.

PN600

MR NGUYEN: Yes, your Honour.

PN601

DEPUTY PRESIDENT HAMILTON: So perhaps just add it, rather than try and do it on the run.

PN602

COMMISSIONER SIMPSON: Yes.

PN603

DEPUTY PRESIDENT HAMILTON: I don't want to lengthen the list.

PN604

MR NGUYEN: Yes. Thank you, your Honour. If I can take you now to the 19.24 income protection entitlement. I understand that this is not agreed but similar to the other insurance through the course of preparing for the matter we identified those issues which I raised earlier. In summary I think our submission is that a fair and relevant safety net should provide for this entitlement for employees who are at risk of being injured in their work, which will allow them - particularly for income protection it allows them to have that transition period so that if they are injured and become unfit to perform their duties, that they have that transition period covered by the income protection to train and change their career path for future - - -

PN605

VICE PRESIDENT HATCHER: You might want to explore whether it's possible to claim these policies in conjunction with superannuation. Then you might squeeze it into 139(1)(i).

PN606

MR NGUYEN: Yes, your Honour. I understand that that is collectively the process that's provided for. It is through the superannuation processes as well with the employer.

PN607

VICE PRESIDENT HATCHER: All right.

PN608

MR NGUYEN: If I can take you now to - - -

PN609

DEPUTY PRESIDENT HAMILTON: 26 is it?

PN610

MR NGUYEN: 23, ordinary hours of work and rostering. I understand that this clause is now agreed. It has been amended from our original draft to ensure that it doesn't exclude the NES and we've also included averaging arrangements there which we understand exist in the industry, and at the request of Babcock we've also included the 56 consecutive days period in there as well to allow for averaging over that period.

PN611

If I can take you now to clause 25 which is the hours of duty and days free of duty. I understand that this clause is now agreed. The genesis of the clause is from the CHC Enterprise Award. If I can take you now to clause 26, the multiple day tours. 26.1 about the non-permanent tourers, I understand that that clause is now agreed. However 26.2 about the permanent tourers is not agreed. 26.1 is from the CHC Enterprise Award but 26.2 is a new clause that we have developed arising out of initially Babcock's submissions and also through feedback from our members that they do work the 28 day roster for permanent tourers, which involves the 15 days on and 13 days off.

PN612

Now this clause is not agreed in conjunction with the annual leave and the public holidays issue as well. So I'd just like to address those clauses together, and if I can just hand up a document to the Bench for illustrative purposes. So I'll just describe the intention that we have in terms of what the entitlements should be for the permanent tourers. So on the first page is what our proposal is. You can see that there are two work cycles next to each other of 28 days. The green is the 15 days on and the blue is the 13 days off. The average of 38 hours per week is averaged over the work cycle of four weeks. So you can see then that the 13 days off are actually accrued as a result of the averaging of the work over the four weeks.

PN613

VICE PRESIDENT HATCHER: But your clause is just facilitating this and it doesn't prescribe anything.

PN614

MR NGUYEN: It does. That's right, just facilitates that.

PN615

VICE PRESIDENT HATCHER: Well, then what - - -

PN616

MR NGUYEN: What is the dispute? The dispute - - -

PN617

VICE PRESIDENT HATCHER: As long as a person can fit whatever roster they like within clause 23.2, why do we need to be prescribing this sort of thing?

PN618

MR NGUYEN: I understand that there is a practice of providing annual leave and public holidays in relation to permanent tourers which Babcock has a proposal in relation to the annual leave clause that they propose, which would require the detailing of what are the days off, which are the days on, and their proposal includes like a definition that says the 13 days off from the previous cycle. And so we agree that that should be included so that it's clear that it's the 15 days and 13 days off, so when you reference the leave it's clear - for our proposal it's clear that you get one cycle off each second year and then every other second year you get two cycles off so that the 42 days of annual leave per year can be taken in that form.

PN619

VICE PRESIDENT HATCHER: So you've got hours dealt with under the hours' clause, annual leave is provided for in the NES - - -

PN620

DEPUTY PRESIDENT HAMILTON: Why not just use the NES?

PN621

VICE PRESIDENT HATCHER: Why do we need to get into micro management of how people work their rosters?

PN622

DEPUTY PRESIDENT HAMILTON: Why not just use the NES?

PN623

MR NGUYEN: That may be appropriate if it's facilitate - if the annual leave and the work arrangements that we believe should exist are facilitated. We - - -

PN624

VICE PRESIDENT HATCHER: Well, I mean either it is or it isn't permissible under the NES, but that's not something that we can control. That is, we can control how hours are worked but as long as there's a sufficiently flexible hours' clause then how that's arranged in conjunction with annual leave, the requirements of the NES is simply a matter for the management of individual enterprises, isn't it? That is there's no reason to prescribe a particular way, a single way of doing this.

PN625

MR NGUYEN: Well, I think perhaps I've done it the wrong way round. If I can take your Honours through my understanding of Babcock's proposal which we are responding to.

PN626

VICE PRESIDENT HATCHER: I mean why do we need any - I'm really asking why do we need any proposal about this? We've got an hours' clause and we've got an NES annual leave requirement.

PN627

MR NGUYEN: There is a practice in the industry which we don't agree is possible, where the public holidays and annual leave of the NES seems to be excluded by the operation of the practice which Babcock is proposing, and they're using as the proposal - that they're saying that - - -

PN628

DEPUTY PRESIDENT HAMILTON: So you want us to interpret the NES, reject the employer's view of the NES and record in writing and in an award your view of the NES. Is that what you're saying?

PN629

MR NGUYEN: We think it's necessary to clarify this issue in terms of how this award may operate in those circumstances, because that is how the work is currently being arranged for permanent tourers.

PN630

VICE PRESIDENT HATCHER: I mean if there's an issue about the way Babcock do things you can either generate a dispute using the disputes procedure and it can be resolved that way, or you can take proceedings against them for non‑compliance with the NES, can't you?

PN631

MR NGUYEN: That's true. If we - - -

PN632

VICE PRESIDENT HATCHER: That is, it's not appropriate to deal with a particular company's practice by way of establishing some one size fits all award provision, is it?

PN633

MR NGUYEN: This is not unique to Babcock. This arrangement for permanent tourers is an industry‑wide practice is what we understand. It also applies at CHC.

PN634

DEPUTY PRESIDENT HAMILTON: Well, there may be variations by the employer that we don't know about and which you don't know about. So how can we anticipate all the disputes across the industry that will arise and do a general award to resolve all those disputes in your favour?

PN635

MR NGUYEN: I mean, your Honour, the process is an open process and parties have been given an opportunity to express a view about the issues that have been raised in these proceedings and about how the proposed award may operate and affect them. So there has been an opportunity - - -

PN636

DEPUTY PRESIDENT HAMILTON: No, that's not the point. The point is I don't think we can anticipate the nature of these disputes so as to sensibly make an award provision.

PN637

VICE PRESIDENT HATCHER: I mean in any event because your clause is only facilitative it doesn't resolve anything. It says you may do that but Babcock say "But we may do something else as well". That is, it doesn't resolve the issue. It just identifies one possible way of doing something doesn't it?

PN638

MR NGUYEN: In relation to clause - well, the clause should be read together, that public holidays and annual leave clause. Well, the context is that we oppose the clauses being proposed by Babcock which is the clause indicating that annual leave is calculated in a particular way, and so that's I guess the catalyst for our submissions in relation to what we propose and what we say should operate.

PN639

VICE PRESIDENT HATCHER: So what is the annual leave provision that's in dispute then?

PN640

MR NGUYEN: Babcock's proposal is that - if you turn over the page you can see Babcock's proposal is that for annual leave employees aren't entitled to the - - -

PN641

VICE PRESIDENT HATCHER: So where is this?

PN642

MR NGUYEN: On page 2, just over the page.

PN643

DEPUTY PRESIDENT HAMILTON: Page 2 of what?

PN644

VICE PRESIDENT HATCHER: Of the award. What is the award provision about annual leave that's in dispute?

PN645

MR NGUYEN: Our award provision that we propose - Babcock's proposal is in the submission from 6 December.

PN646

DEPUTY PRESIDENT HAMILTON: Is that clause 30, annual leave? It's:

PN647

BMCSA provides the following wording which is consistent with the Pilots Award.

PN648

They're adopting the Pilots Award, are they?

PN649

MR NGUYEN: Is that paragraph 83?

PN650

DEPUTY PRESIDENT HAMILTON: They're adopting the Pilots Award aren't they?

PN651

MR NGUYEN: That's right. It's the clause taken from the Pilots Award.

PN652

DEPUTY PRESIDENT HAMILTON: And you're saying the clause in the Pilots Award is inconsistent with the NES are you?

PN653

MR NGUYEN: Yes, your Honour.

PN654

DEPUTY PRESIDENT HAMILTON: Did you put that to a - - -

PN655

MR NGUYEN: We haven't looked at the Pilots Award in detail so we can't comment on how that clause operates in the context of the Pilots Award, but we can only comment on how that clause will operate if it's imported into the proposed award that we are proposing.

PN656

DEPUTY PRESIDENT HAMILTON: They seem to just want to adopt (d) and (e) of the Pilots Award.

PN657

VICE PRESIDENT HATCHER: The Pilots Award allows for 42 days' annual leave which is obviously far in excess of the NES if I'm correct. Therefore insofar as it's in excess of the NES, presumably the award can regulate how the additional leave is to be used and taken.

PN658

MR NGUYEN: As I say, I can't comment on the specifics of the Pilots Award, but if that was imported into our proposed award, our 42 days of annual leave is four weeks of annual leave plus the two weeks to take into account the public holidays which employees aren't taking. So we would say the six weeks is four weeks annual leave, plus the two weeks' worth of public holidays - - -

PN659

DEPUTY PRESIDENT HAMILTON: But you get 42 days as well, do you?

PN660

MR NGUYEN: Our proposal is that employees will receive 42 days, yes.

PN661

DEPUTY PRESIDENT HAMILTON: Why wouldn't that be the same as the 42 days the pilots receive?

PN662

MR NGUYEN: I can't comment on the 42 days in the Pilots Award. I am not sure of the history or the background to where the 42 days is calculated from in the Pilots Award. But what I can say from our - I can only speak on what we - - -

PN663

VICE PRESIDENT HATCHER: So where has the 42 days come from then?

PN664

MR NGUYEN: In terms of the Pilots Award, I have to come back to - - -

PN665

VICE PRESIDENT HATCHER: No. In your award?

PN666

MR NGUYEN: In our award we say it exists where employees forego the public holidays.

PN667

VICE PRESIDENT HATCHER: But is that an existing entitlement somewhere?

PN668

MR NGUYEN: Yes. Our clause is at 30.2.

PN669

VICE PRESIDENT HATCHER: Where does that come from? Has that got some history to it or - - -

PN670

MR NGUYEN: Yes. That is what is in practice in the industry. It's - employees forgo. So there is an equivalent clause at 30.8(e) which indicates:

PN671

An employee entitled to 42 days annual leave will not be entitled to the public holidays on the day.

PN672

I accept that there may need to be some redrafting to ensure it complies with NES, so in terms of that it's substitution.

PN673

VICE PRESIDENT HATCHER: Does that comply with NES?

PN674

MR NGUYEN: Sorry?

PN675

VICE PRESIDENT HATCHER: Does that comply with NES?

PN676

MR NGUYEN: The intention is that this is an agreement by - substitution by agreement, which is allowed for under the NES.

PN677

VICE PRESIDENT HATCHER: There is nothing about agreement with that.

PN678

MR NGUYEN: But I do note, having a look at it now, that there is - I do acknowledge that there is a requirement - - -

PN679

DEPUTY PRESIDENT HAMILTON: What if there's no agreement?

PN680

MR NGUYEN: - - - to - there is a requirement - there should be the inclusion of the requirement that it's by agreement. Yes. I acknowledge that point, just looking at the clause now. In order for compliance with NES there should be an agreement. But the practice is that employees do agree to take the 42 days annual leave in substitution for the public holidays being taken on the days that they occur and that there is no problem with that, and people are happy to enter into those agreements.

PN681

Our essential point is that if you are taking the averaging arrangement, the days off that are accrued are days off accrued as a result of working that averaging arrangement and the days off shouldn't be counted - double-counted as public holidays substituted or annual leave. So the proposal if imported (indistinct) proposal to import those terms would result in the double-counting of those 13 days as both accrued days of from an averaging cycle, and/or public holiday days substituted or annual leave. But I undertake to provide a redraft of 30.2 and 30.8.

PN682

DEPUTY PRESIDENT HAMILTON: Perhaps you need to look at just adopting the NES?

PN683

MR NGUYEN: We think it is important to allow for the facilitation of these agreements which currently exist in the industry that people do take the 42 days' leave which includes a public holiday (indistinct) to substitute public holidays and that would be - if the practice is disrupted in any way, obviously we wouldn't want that. We would have to consider the effect of not having a direct facilitation of that substitution.

PN684

DEPUTY PRESIDENT HAMILTON: Well, if it just refers to the NES, nothing will disrupt anything that's done which is consistent with the NES.

PN685

MR NGUYEN: There is a question of whether substitution is available if a term doesn't exist to provide for that substitution, which we will need to consider as well. I think I have covered off on our essential point about unless there's any further questions.

PN686

If I can take your Honours now to clause 27. Overtime days worked. This clause - I understand there is disagreement about the rate which is the 200 per cent that we propose for the daily rate and also there's disagreement about the inclusion of the night shift loading.

PN687

DEPUTY PRESIDENT HAMILTON: Where do you get the 200 per cent from?

PN688

MR NGUYEN: That's taken from the CHC Enterprise Award. We think that the principle is that employees should not only be paid for the overtime hours that are worked, but when you are working an additional day in the context of being away from home at a different base, then that obviously was the lead time off that has to exist before you then start you additional day of work, which is the overtime.

PN689

DEPUTY PRESIDENT HAMILTON: Is it the same at the Pilots Award? Because the conditions would be the same, wouldn't they?

PN690

MR NGUYEN: I haven't looked at that question.

PN691

DEPUTY PRESIDENT HAMILTON: It's the same issue, isn't it, that you've just raised?

PN692

MR NGUYEN: I will come back to you about the comparison with the Pilots Award, but our essential submission is that the time off, which isn't paid, should be compensated as well, which we say is taken into account by that 200 per cent loading for overtime days, which is an additional day. You only get paid for the day that you worked, but that rate takes into account that you have also had time off away from home, away from family and away from (indistinct) to have that - - -

PN693

VICE PRESIDENT HATCHER: If we could just take a step back for minute, these helicopter crew are obviously working alongside a helicopter pilot under the Pilots Award.

PN694

MR NGUYEN: Yes, your Honour.

PN695

VICE PRESIDENT HATCHER: And presumably they will have to work basically on the same type of roster or working pattern and involve the same travel patterns.

PN696

MR NGUYEN: Yes, your Honour.

PN697

VICE PRESIDENT HATCHER: Why doesn't the Pilots Award then provide you with the formula as to how to do this? You see, the Pilots Award just talks about CASA regulations and a few other things. Why couldn't we put there people in as an adjunct to the Pilots Award, as they work alongside and if they are doing the same working rosters and travel patterns, pick up the conditions applicable to the pilot?

PN698

MR NGUYEN: We haven't considered that option. We had only considered the option of the Air Cabin Crew award.

PN699

VICE PRESIDENT HATCHER: It just seems to me odd that you have got two people working obviously very closely together and probably sitting within one metre of each other. The idea that they are covered by two different modern awards is a bit strange.

PN700

MR NGUYEN: We will undertake to come back to your Honour about that possible option as well. But in general terms, they are different occupations requiring different skills.

PN701

VICE PRESIDENT HATCHER: Well, obviously the skills are different and you need the classification, but in terms of things like travel patterns, hours of work and rostering arrangements, I would have thought they would be doing the same thing, wouldn't they?

PN702

MR NGUYEN: We hadn't considered - when you come back to your Honour about that specific question. I need to take some instructions from my members about how closely the work is aligned.

PN703

DEPUTY PRESIDENT HAMILTON: Well, if they are all in the same cabin, they have to work together and the requirements would be the same or similar.

PN704

MR NGUYEN: I can't comment on whether or not that may or may not be the case. I need to check with our members. There may be a different flow or allocation of their crew than pilots. I just don't know. I can't answer that question, your Honour. It's obviously the case that the helicopter will always require a pilot and an air crew person, but whether or not they are the same or their work is arranged - you know, rosters are seen, I will have to get further instructions on that.

PN705

So if I can take your Honours now to clause 28, overtime hours worked. I understand that this clause is now agreed. The only thing is clause 28.3, which references the overtime day payment may, depending on the outcome of whether or not overtime days are accepted, that clause might need to be amended, because Babcock don't agree with the overtime days clause. So that will depend on that.

PN706

Clause 31, upper respiratory tract infection leave. I understand that this cause is now agreed. It provides for the six days of upper respiratory tract infection leave.

PN707

VICE PRESIDENT HATCHER: And why should helicopter crew get that?

PN708

MR NGUYEN: We say that the helicopter air crew should receive that because their ability to be attend and be available to perform the operations are affected in circumstances where in other industries you might have a blocked nose, but still be able to perform your work, but in this particular circumstance for helicopter air crew if they do have blocked sinus or a blocked nose there can be dangers or injuries potentially incurred on their eardrums or on their upper respiratory tract areas if they do fly with those upper respiratory tract infections.

PN709

DEPUTY PRESIDENT HAMILTON: Isn't that the same for other flight crew?

PN710

MR NGUYEN: It is the same, your Honour, and I understand that there's similar entitlements for air cabin crew.

PN711

VICE PRESIDENT HATCHER: And pilots?

PN712

MR NGUYEN: Yes. I understand that it does - I'd need to check the Pilots Award, your Honour. I don't want to mislead you. That concludes my submissions about the individual entitlements. I just wanted to just make a few comments in relation to CHC's submissions. If I can hand up three documents to the Bench.

PN713

The first document is the CHC Helicopters Enterprise Award, which is the subject of the award modernisation proceedings for enterprise awards, which the AMWU made an application to modernise. That proceeding is currently on hold, pending the outcome of these proceedings. But during those proceedings CHC agreed with the union that the award should be modernised with the terms that were contained in that enterprise award and they wrote to the Commission on 14 April, which is the second document. It's a letter from (indistinct) dated 14 April 2014, confirming that they supported the AMWU's application and didn't wish to make any further representations on the matter.

PN714

Following that email, Watson VP's chambers wrote back to CHC and confirmed - well, thanks them to the correspondence which is the third document. Katherine Cryer(?) who is the associate to Watson VP wrote back to (indistinct) indicating that they thanked her for the correspondence and also note that CHC Helicopters support the AMWU's submissions in relation to this matter.

PN715

So that was the position that CHC put at that time. We did commence discussions with them following the lodging of submissions to the Commission recently in these proceedings and we did put to them the question that this is an inconsistent position with what you've put previously and we would hope that they continue to put the position that they previously agreed with us, which is that those terms which existed in the enterprise award are appropriate to apply to them as a safety net.

PN716

That concludes my submissions, your Honour.

PN717

DEPUTY PRESIDENT HAMILTON: And the significance of that?

PN718

MR NGUYEN: The significance is that CHC previously identified that they supported the terms of that award applying is the safety net to them.

PN719

DEPUTY PRESIDENT HAMILTON: That was four years ago.

PN720

MR NGUYEN: It is still on foot. The proceedings have not been finalised. And it is pending that - the Full Bench made a decision at the time that the AMWU should proceed with pursuing the occupational - - -

PN721

DEPUTY PRESIDENT HAMILTON: Parties are allowed to change their positions. I mean, you have on a number of occasions. I am not being critical of you for doing so. Quite the reverse.

PN722

MR NGUYEN: In terms of one - in terms of specific issues, we have obviously changed our position in specific terms to match issues arising that the employer identified which we hadn't taken into account, but in general terms CHC had supported the safety net being the terms of that enterprise award, which was their enterprise award.

PN723

VICE PRESIDENT HATCHER: It's one thing to support an award specific to an enterprise, but that doesn't mean that you have to agree to the same things being in an industry award, does it?

PN724

MR NGUYEN: Well, it does raise a question - I wouldn't understand why an employer would want to have a safety net that is higher than what the competitors might have.

PN725

VICE PRESIDENT HATCHER: They might use it as a way to attract labour.

PN726

MR NGUYEN: That may - I am not sure what the logic behind that is, but it does raise - - -

PN727

DEPUTY PRESIDENT HAMILTON: Attraction and retention rates, I think was the old phrase.

PN728

MR NGUYEN: That may - - -

PN729

DEPUTY PRESIDENT HAMILTON: A de facto agreement.

PN730

MR NGUYEN: That may be a possibility as well, to attract staff in terms of their - - -

PN731

DEPUTY PRESIDENT HAMILTON: Some employers didn't have an enterprise agreement. They had enterprise awards which did the same functions. And they kept doing that. For example, CSR.

PN732

MR NGUYEN: Yes. I take the point, your Honour. It's true that employers do use entitlements (indistinct) to attract.

PN733

DEPUTY PRESIDENT HAMILTON: Well, used to. They are not able to, to the same extent now. The Commission stopes them some times. And the objects of the Act are different.

PN734

MR NGUYEN: That's all I have to say about that, your Honour. If it please the Commission.

PN735

VICE PRESIDENT HATCHER: Mr Rogers?

PN736

MR ROGERS: Yes, thank you.

PN737

DEPUTY PRESIDENT HAMILTON: I don't want to interrupt your flow, but do you think you would be able to finish by lunchtime?

PN738

MR ROGERS: I hope so.

PN739

DEPUTY PRESIDENT HAMILTON: I am just asking - - -

PN740

MR ROGERS: I hope so.

PN741

DEPUTY PRESIDENT HAMILTON: Perhaps we should be careful with our questions.

PN742

MR RIDINGS: Excuse me, your Honour. I just need to take a short break.

PN743

VICE PRESIDENT HATCHER: Yes.

PN744

MR ROGERS: In relation to the various items handed up in relation to the draft award, 19 July 2018. Maybe if I quickly go through in relation to those particular items in relation to where we have got some comments and some concerns. There are, I suppose, some preliminary comments. Comments really made from the Bar Table by Mr Nguyen which we are not in a position to provide evidence in relation to, but it is fair to say we don't necessarily accept what has been asserted.

PN745

For example, the number of employees envisaged to be covered by the proposed award, a figure of 1500 was suggested at the start. We would understand that figure would be half of that at most. But I am not in a position to give you any precise figures.

PN746

VICE PRESIDENT HATCHER: So you say it's an over estimate.

PN747

MR ROGERS: Correct. In relation to an indication of employers and this is in the context of surveillance and air rescue, obviously there is Babcock Mission Critical Services Australia who I am representing today. Other employers in the industry - there is obviously CHC that has been referenced. There is also Toll. There is also Helicopters New Zealand, although there is a? As to whether they would necessarily employ people in this category. There is Queensland Emergency Services, but there could be a question mark as to what award coverage may apply to people employed by that organisation.

PN748

VICE PRESIDENT HATCHER: So what the question there? You say that they might be covered by the Ambulance and Patient Transport Award, do you?

PN749

MR ROGERS: There could potentially be. It's not as though I've done any research to ascertain that. There is Care Flight. There would be Life Flight and the other organisation that we'd be aware of would be Western Australia Helicopters. But again, we can't vouch as to whether they would necessarily actually employ Helicopter air crew.

PN750

DEPUTY PRESIDENT HAMILTON: What about the general transport issue?

PN751

MR ROGERS: Yes. There was also a comment just in relation to that. So certainly my instructions are we would anticipate that that number employing aircrew would actually be quite minimal in the sense that most in the transport sector is just pilot-own operation and certainly our understanding that the - you know, in the context of talking about flying offshore to oil rigs, again most of that we understand is just purely pilot.

PN752

There wouldn't be helicopter air crew on the helicopter transporting those employees to the site. So they are just a couple of questions. Again, it's in the context that obviously there has been no evidence led and nor in preparing for Babcock have we, sort of, probed or delved into those particular issues, but we just wanted to say what our position was in relation to that.

PN753

IN relation to clauses 18.4, 5 and 6, I just confirm that we are in agreement in relation to those issues. 18.7, the only is whether subparagraph (e) should be included, but that's on the basis that we object to the inclusion of the clause which is later on in relation to that clause 19.6, which I will come to shortly.

PN754

There was a discussion earlier on by the Bench in relation to clause 19.4 about the night vision goggle operation allowance. There is a provision, clause 19.12 of the Air Pilots Award, which does cater for night vision goggle allowance in that award.

PN755

VICE PRESIDENT HATCHER: Is that equivalent (indistinct).

PN756

MR ROGERS: Yes. Do you have copies of the Air Pilots Award?

PN757

VICE PRESIDENT HATCHER: Yes,

PN758

MR ROGERS: I can provide you with copies if you don't.

PN759

VICE PRESIDENT HATCHER: No. We have it.

PN760

DEPUTY PRESIDENT HAMILTON: What clause?

PN761

MR ROGERS: Clause 19.12 on page 24. So what's in 19.12(b) of the Air Pilots Award.

PN762

DEPUTY PRESIDENT HAMILTON: 995.56 percentage. I don't know what that means.

PN763

MR ROGERS: Well, we've done calculation. So it would equate - the first percentage of 995% would equate to a figure in the order of 8300. That's in the context of a single pilot command.

PN764

VICE PRESIDENT HATCHER: That's a percentage of the hourly rate, is it, or the weekly rate?

PN765

MR ROGERS: Percentage of standard rate.

PN766

VICE PRESIDENT HATCHER: Which is what? Is that an hourly or weekly rate?

PN767

MR ROGERS: There is certainly some discussion on just a payment of an annual salary in the Air Pilots Award. So we'd go then to some of the schedules they talk about.

PN768

VICE PRESIDENT HATCHER: Yes, but 995 per cent of it. We're not talking about annual salary. That would be a very large - - -

PN769

MR ROGERS: Yes. Per annum, the percentage of the standard rate.

PN770

DEPUTY PRESIDENT HAMILTON: It must be an hourly rate, mustn't it?

PN771

MR ROGERS: The standard rate, I think, is defined in the Air Pilots Award. So it means the minimum salary divided by 52. So it comes back to a weekly amount.

PN772

VICE PRESIDENT HATCHER: While we are on the Pilots Award, Babcock would operate a helicopter with a pilot and then an air crew person sitting to their left or behind. Presumably in terms of the practical issues of hours of work and rosters, the air crew would work on the same basis as the pilot.

PN773

MR ROGERS: As a general rule.

PN774

VICE PRESIDENT HATCHER: And if there's a requirement for travel, you'd send out a pilot and you'd send out an aircrew person and they would be travelling together and have the same disabilities and expenses and the like?

PN775

MR ROGERS: Correct.

PN776

VICE PRESIDENT HATCHER: So why wouldn't the addition of - to the extent we form the view that any award regulation of this category of persons was required, why wouldn't the best course be to put them under the same award of the person they work alongside with on a day-by-day basis, which performs a package of conditions as to how the work is to be performed. Why do we need to start from scratch?

PN777

MR ROGERS: I suppose there's - it is correct to say that's a fair question. It is something which probably would want a bit more consideration, especially in terms of some of the relativity that then might arise is relation to - - -

PN778

VICE PRESIDENT HATCHER: Obviously there is an issue about pay rates, which is another issue, but you've got an agreement about pay rates. So there's that matter. But it seems to be undesirable, as a matter of course, that two people working together less than a metre apart would be under two different modern awards.

PN779

MR ROGERS: Yes. Obviously we've got the Pilots Award there is also the Cabin Crew Award. So I know there had been some earlier discussion as to whether it should be a variation to the Cabin Crew Award.

PN780

VICE PRESIDENT HATCHER: Well, the Cabin Crew Award is about flight attendants.

PN781

MR ROGERS: Yes.

PN782

VICE PRESIDENT HATCHER: Which is a different thing.

PN783

MR ROGERS: Yes.

PN784

VICE PRESIDENT HATCHER: All right.

PN785

MR ROGERS: Then in relation to - there was a discussion in relation to the (indistinct) allowance, but confirm that where we have got to we have reached agreement in relation to that. The clause that we certainly still - that Babcock objects to is clause 19.6. We just don't think that's appropriate at all and certainly the mechanism which - - -

PN786

DEPUTY PRESIDENT HAMILTON: This is very unique.

PN787

MR ROGERS: We can't find any comparison.

PN788

DEPUTY PRESIDENT HAMILTON: I think it was suggested we need it because it's unique.

PN789

MR ROGERS: Well, I certainly don't accept that. I don't accept why - you know, what is - certainly the skills that they apply, yes, there's an element of uniqueness about it, but what is so different about changes in processes for doctors, for example, in hospitals when they introduce - for example, if you are introducing for doctors or nurses digital records and things of that nature, like any aspect of any employment will have changes, especially with the digital economy. There will be changes. There's a consultation mechanism that exists and if there are particular issues in particular enterprises that need - that they believe warrants pursuit or some additional claim, then that can be pursued at the enterprise level.

PN790

I am unaware of any comparable provision in any modern award and I just don't think that this an appropriate mechanism to be included as part of a modern award. The comparator that's provided in relation to casual conversion or flexible work arrangements, they are the type of issues that can sort of be dealt with by yes or no answers and obviously with some justification where an employee request is being denied, but this is in circumstances where under 19.6(a) if there is then this additional skill, then obviously the employees and/or their representatives can then propose to reach agreement, but that agreement could be, "Well, we want an extra $500 a week" in relation to this additional skill. It's a completely different context to suggest - - -

PN791

DEPUTY PRESIDENT HAMILTON: I see. So it's a procedure to cause dispute in your view.

PN792

MR ROGERS: Absolutely.

PN793

DEPUTY PRESIDENT HAMILTON: An invitation to bowl up new proposals.

PN794

MR ROGERS: Yes, and it's something that should just simply be pursued as an enterprise level, not some sort of structure incorporated into a modern award.

PN795

So certainly I rely on the submissions that we have made in relation to that, especially paragraph 17 of our submissions of 20 April.

PN796

DEPUTY PRESIDENT HAMILTON: Fitness.

PN797

MR ROGERS: Fitness again, we object to.

PN798

DEPUTY PRESIDENT HAMILTON: You witness agreed they need to be fit for winching and all sorts of things.

PN799

MR ROGERS: We accept that, but there is a whole range of industries where you would say that there's a level of fitness that is required. And certainly from the Bench, you know, you've legitimately asked questions about some of those issues. This isn't new to the AMWU. Our submissions of 6 December, paragraphs 48 to 55, but in particular 53 where we said that there's no comparable allowance in a whole range of other awards -and in those submissions, we identified the Pilots Award, Cabin Crew Award, Ground Staff Award, Federal Police, Security Services Industry or the Fitness Industry, and even this morning I can verify that I've looked at the Fire Fighting Industry Award and there is no comparable allowance; nor is there anything, for example, in the Professional Diving Industry Industrial Award of 2010.

PN800

VICE PRESIDENT HATCHER: You don't a fitness allowance to be a fitness instructor.

PN801

MR ROGERS: Exactly. So why should it be - and if you look at the evidence led, it's a bit - it varies as to the level of fitness that is required and for it to be simply a default allowance where it's paid, it's not even contemplating some level of reimbursement, so where someone has actually gone out and incurred a particular expense. It is just a default obligation on the employee.

PN802

But our primary issue is we just don't think it's appropriate and nor should it be included as part of a modern award. And the evidence, even of Mr Flanagan, some of the arrangements, even within organisations can vary, depending on which particular customers and clients that they are servicing within that. So for example, there was some discussion about border security.

PN803

So we just object to the inclusion of the fitness allowance and, again, it should be part of a modern award. It's really an issue to be pursued through enterprise bargaining if it is something which the workforce is wanting to agitate within any organisation.

PN804

Just the comment in relation to overseas allowance, I can just draw your attention - there is a provision. It is different in the Air Pilots Award, clause 19.5. But it certainly does cover in circumstances where these are Australian-based employees who are then asked to go overseas.

PN805

VICE PRESIDENT HATCHER: That would apply to helicopter pilots, wouldn't it?

PN806

MR ROGERS: Correct. Yes. Then in relation to - - -

PN807

DEPUTY PRESIDENT HAMILTON: Clause 19.24 is it?

PN808

MR ROGERS: Yes. Now, we have reached agreement in relation to subparagraph (a). Now, I am not sure if one of the questions raised - - -

PN809

DEPUTY PRESIDENT HAMILTON: Is it an allowance?

PN810

MR ROGERS: Yes. I just wanted to draw your attention - it is actually a provision comparable in the Air Pilots Award and it's in clause 22.12. So I just wanted to bring that to the Bench's attention. So there certainly is a comparable provision in another similar award.

PN811

Certainly when it comes to subparagraph (b) we certainly object to the inclusion of that provision. We just don't think it's appropriate for it to be included as a term of a modern award. Again it can be something which may be pursued through enterprise bargaining at the enterprise level, but for it to be a minimum safety net, we would say is entirely inappropriate.

PN812

DEPUTY PRESIDENT HAMILTON: I mean, are there a lot of these fine? I don't understand what they are.

PN813

MR ROGERS: Sorry?

PN814

DEPUTY PRESIDENT HAMILTON: What are these fines? Is it a real risk or is it a remote and unusual thing or - - -

PN815

MR ROGERS: Well, we are certainly unaware of any occasions where an air crew member has ever been prosecuted by CASA. There can be a range of non-compliances under the regulations - - -

PN816

DEPUTY PRESIDENT HAMILTON: Why are we talking about it then, if it never happens?

PN817

MR ROGERS: And I've said we just think it is entirely inappropriate for it to be included.

PN818

DEPUTY PRESIDENT HAMILTON: So as far as you are aware, it's not a serious incidence in the workplace?

PN819

MR ROGERS: Certainly I am unaware of any incident. That's my instructions.

PN820

DEPUTY PRESIDENT HAMILTON: I'm puzzled then why we are talking about it.

PN821

MR ROGERS: Well, we are talking about it because we don't think it's appropriate for it to be included.

PN822

DEPUTY PRESIDENT HAMILTON: Well, I will rephrase. Why it's being proposed.

PN823

MR ROGERS: Yes.

PN824

DEPUTY PRESIDENT HAMILTON: That was what I meant.

PN825

MR ROGERS: And I don't think there is any sort of concrete evidence it's being proposed for its insertion and certainly we couldn't find anywhere where any comparable provision has been included in the award and certainly we can't find it in the Air Pilots Award.

PN826

VICE PRESIDENT HATCHER: I can't see that it can be included unless there's some evidence that this is something - an incidence of the workplace.

PN827

MR ROGERS: Yes.

PN828

DEPUTY PRESIDENT HAMILTON: And there isn't any, you say?

PN829

MR ROGERS: Certainly we have been unable to.

PN830

DEPUTY PRESIDENT HAMILTON: There isn't any evidence before us.

PN831

MR ROGERS: No. That's right.

PN832

DEPUTY PRESIDENT HAMILTON: Right.

PN833

MR ROGERS: Clause - what is now 19.23, that is agreed. And also by way of reference, that clause is comparable to clause 22.11 of the Air Pilots Award as well and as has been indicated, we do not agree to the income protection insurance clause being included as a minimum safety net for this award. It is more appropriate for it to be dealt with through enterprise bargaining.

PN834

Now, I think the next issue to discuss then is in relation to multiple day tours under clause 26. Where we have got to is there are two options as to how the Commission can deal with this.

PN835

DEPUTY PRESIDENT HAMILTON: Why not just leave it to the NES?

PN836

MR ROGERS: There is some, yes, good reason as to why - - -

PN837

DEPUTY PRESIDENT HAMILTON: Which is?

PN838

MR ROGERS: Yes.

PN839

DEPUTY PRESIDENT HAMILTON: Which is?

PN840

MR ROGERS: Well, in relation to clause 26, one option is just to delete the 26.2, which is the issue in contention. And certainly from Babcock's position, we would then be comfortable with 26.1 or what's in 26.1 being the body of clause 26. It would necessitate - - -

PN841

VICE PRESIDENT HATCHER: So that would apply to all tourers, not just permanent (indistinct) and non-permanent tourers.

PN842

MR ROGERS: It would apply to all employees.

PN843

VICE PRESIDENT HATCHER: Yes.

PN844

MR ROGERS: (Indistinct) multiple day tours. It would just necessitate a change to the subheading in 26.1. That would just come out. So that is certainly one option.

PN845

VICE PRESIDENT HATCHER: Is that dependent upon keeping - where is it - 30.8(b)?

PN846

MR ROGERS: Well, that comes to the issue of the 42 days of leave and I suppose the matter has been progressed on that basis. But I suppose - - -

PN847

DEPUTY PRESIDENT HAMILTON: Where does the 42 days come from? It seems - - -

PN848

MR ROGERS: Well, if I can - - -

PN849

DEPUTY PRESIDENT HAMILTON: Is it the same source as the Pilots Award?

PN850

MR ROGERS: Correct, it is. And if I can just - - -

PN851

DEPUTY PRESIDENT HAMILTON: Well, they didn't think it was.

PN852

MR ROGERS: Well, where it appears is actually in schedule E of the Air Pilots Award which deals with helicopter pilots. So this issue about permanent tourers is in - and again, this was sort of reference in our submissions back in December, but if there is going to be a reference to this issue about the 28-day cycle, 15 days on, 13 days off - so this is in clause E.6.5 on page 68 of the Air Pilots Award.

PN853

So if 26.2 is to remain, then our position is that, yes, but it should then be consistent with what is in the Air Pilots Award. .

PN854

VICE PRESIDENT HATCHER: So you would be employed pilots pursuant to that schedule and they would be working under pursuant to E.6.5. Is that right?

PN855

MR ROGERS: Well, certainly that's the award basis. I think the pilots are covered under - - -

PN856

MR RIDINGS: Yes, if I can answer that, your Honour. Babcock pilots are employed under an enterprise agreement which is, of course, for the BOOT test purpose measured against the Air Pilots Award and that is the clause that is applied to both pilots and air crew.

PN857

VICE PRESIDENT HATCHER: All right. Thank you.

PN858

MR ROGERS: So our position on 26 - - -

PN859

VICE PRESIDENT HATCHER: So it is applied to both pilots and air crew?

PN860

MR RIDING: Yes, sir.

PN861

MR ROGERS: So if 26.2 is to remain, that's where we say that it should also go on to be reflective of what's in subparagraphs (d) and (e) of E.6.5 of the Air Pilots Award 2010. Now, it may be that CHC has come to some sort of other arrangement, but that is something which an organisation at an enterprise level is at liberty to do. But we would say that the arrangements that apply to 28(13) if they are to be included in this award, then it should be consistent with what is in the Air Pilots Award that applies to helicopter pilots.

PN862

DEPUTY PRESIDENT HAMILTON: Or alternatively just leave to agreements.

PN863

MR ROGERS: NES. Yes.

PN864

DEPUTY PRESIDENT HAMILTON: And use the NES.

PN865

MR ROGERS: Yes. And as I said, we would be quite comfortable with 26.2 just coming out altogether. The issue about overtime, we just take issue with it defaulting immediately to double-time, which we have articulated with the union and then the other issue is that we just think the issue about night shift is just inappropriate. The fact is that this award doesn't have any feature about afternoon shift, night shift. There is no definition of any of those terms. It's not a feature of this award so why should it suddenly appear under this particular clause 27.2?

PN866

And then I think obviously the issue about public holidays sort of ties in with the issue about the 42 days. Obviously, it becomes an issue if the 42 days are to remain, then we say that 30.8(b) should remain as is. But obviously there is option as to whether it should just be - go back to the NES.

PN867

You had a question about clause 31.1. That is also reflected in the Pilots Award, clause 28.3. And then we had an issue in relation to the issue of jury service. Now, as you appreciate under the NES jury service is paid up to 10 days under section 111. Yes, so 111(5)(a), if an employee is absent because of jury service in relation to particular jury service, the employer is only required to pay the employee for the first 10 days of absence. Now, the clause that has been proposed is, in fact, comparable to what's in the Manufacturing and Associated Industries and Occupations Award 2010. It's clause 43 in that award.

PN868

I think there is legitimately an issue of interpretation about whether the reimbursement provision - is the reimbursement only talking about the period up to the 10 days, or is a more open period of reimbursement which an employee is entitled to.

PN869

So if someone is on jury service, for example, that goes for three months, is that the obligation on the employer? our issue is that it should just be clarified and that the - comfortable with the additional benefit, that it should be then cut to the 10 days; consistent with what's in the NES; that it not be open-ended and especially when it's one thing for larger organisations to agree for a broader entitlement under the NES through enterprise bargaining, but to suggest that that should then be a minimum safety net under a modern award we would just say is not appropriate.

PN870

VICE PRESIDENT HATCHER: I expect if you told a court you worked for a helicopter rescue service, you would get excused pretty quick smart.

PN871

MR ROGERS: Potentially. Yes. Subject to any questions from the Commission - I suppose there is one question that was raised by the Bench earlier and this is in relation to clause 30.8, dealing with public holidays.

PN872

VICE PRESIDENT HATCHER: Yes.

PN873

MR ROGERS: And as to whether 30.8(b) is inconsistent with the provisions of the NES, if that's the case, then we would say that the 42 number then needs to drop and be dropped back to the number of the NES.

PN874

VICE PRESIDENT HATCHER: So is there an equivalent to that provision in the Pilot's Award?

PN875

MR ROGERS: Yes.

PN876

DEPUTY PRESIDENT HAMILTON: Is it inconsistent with the NES, do you think? You need to give us a view.

PN877

MR ROGERS: Yes. I can't give you a definitive view on the spot. There is certainly a question mark over (indistinct).

PN878

VICE PRESIDENT HATCHER: So the Pilots Award provision?

PN879

MR ROGERS: Yes. So it's in 31.1 of the Air Pilots Award, although it is slightly different.

PN880

VICE PRESIDENT HATCHER: A bit less blatant about it.

PN881

MR ROGERS: Yes. Correct. I suppose it factors in the acknowledgment of the compensation.

PN882

DEPUTY PRESIDENT HAMILTON: Clause 31, public holidays?

PN883

MR ROGERS: Yes.

PN884

DEPUTY PRESIDENT HAMILTON: It's in completely different terms, isn't it?

PN885

MR ROGERS: It is. It is different.

PN886

DEPUTY PRESIDENT HAMILTON: There is no similarity.

PN887

MR ROGERS: Yes. And obviously how it works is that provision I have referred to earlier in relation to the 28 and 13, where there is then that express acknowledgment about the 42 days would be inclusive of Saturdays, Sundays and public holidays (indistinct) relates to helicopter pilots and schedule E of that award. Then I've got nothing further.

PN888

VICE PRESIDENT HATCHER: Anything in reply, Mr Nguyen?

PN889

MR NGUYEN: No, your Honour, but I just note we've received confirmation from the AWU that they also supply submissions and sought for us to enter an appearance on their behalf to indicate that.

PN890

VICE PRESIDENT HATCHER: Right. So the parties have obviously taken a number of matters on notice. We will order the transcript. How long do the parties need to put anything they want to say in addition in writing, in response to the various issues raised? Is 14 days on either side sufficient or 14 days from provision of the transcript?

PN891

MR ROGERS: I think 14 days from the day we get the transcript should be sufficient.

PN892

VICE PRESIDENT HATCHER: All right.

PN893

MR NGUYEN: May I ask for additional time, maybe four weeks?

PN894

VICE PRESIDENT HATCHER: Why do you need four weeks?

PN895

MR NGUYEN: Some of the issues that we may need to just seek the views about and potentially put on some statements about the - - -

PN896

VICE PRESIDENT HATCHER: We are not inviting further evidence. We just want your response to the issues raised.

PN897

MR NGUYEN: If it please the Commission.

PN898

VICE PRESIDENT HATCHER: All right. We will allow 14 days once the transcript has been obtained and provided for any party to provide further submissions in response to specific issues raised during the hearing. Once we have received those, we will determine what the next step in the matter should be, probably by way of provision of a statement. I thank the parties for their submissions and we will now adjourn.

ADJOURNED INDEFINITELY [12.52 PM]

LIST OF WITNESSES, EXHIBITS AND MFIs

STEVEN JOHN FLANAGAN, AFFIRMED.................................................... PN140

EXAMINATION-IN-CHIEF BY MR ROGERS............................................... PN140

EXHIBIT #1 STATEMENT OF STEVEN JOHN FLANAGAN DATED 06/12/2017 PN148

CROSS-EXAMINATION BY MR NGUYEN................................................... PN149

THE WITNESS WITHDREW............................................................................ PN189

EXHIBIT #2 STATEMENT OF STEPHEN FORD DATED 19/01/2018....... PN199

EXHIBIT #3 STATEMENT OF CHARLES WILLIAM MCGREGOR-SHAW DATED 24/01/2018............................................................................................................... PN201

EXHIBIT #4 STATEMENT OF WILLIAM PETER SMITS DATED 15/09/2017 PN203

EXHIBIT #5 STATEMENT OF CHARLES WILLIAM MCGREGOR‑SHAW DATED 12/09/2017............................................................................................................... PN205

EXHIBIT #6 STATEMENT OF BRETT ARTHUR HOY DATED 12/09/2017 PN207

EXHIBIT #7 STATEMENT OF STEVEN GUYETT DATED 20/09/2017... PN209

EXHIBIT #8 UNDATED STATEMENT OF STEPHEN FORD.................... PN211

EXHIBIT #9 STATEMENT OF JOEL YOUNG DATED 19/09/2017............ PN213

EXHIBIT #10 STATEMENT OF BRANDON ROGERS DATED 19/09/2017 PN215

EXHIBIT #11 UNDATED STATEMENT OF ANDREW BARRY GASKIN PN217

EXHIBIT #12 STATEMENT OF LAUREN MICHELLE ADAMS DATED 10/07/2018 PN223

EXHIBIT #13 STATEMENT OF MARTIN GEORGE MASON DATED 10/07/2018 PN225