TRANSCRIPT OF PROCEEDINGS

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Fair Work Act 2009 41137-1

COMMISSIONER GAY

AM2010/251

s.158 - Application to vary or revoke a modern award

Application by Motor Trade Association of South Australia, The
(AM2010/251)
Vehicle Manufacturing, Repair, Services and Retail Award 2010

(ODN AM2008/62)
[MA000089 Print PR988987]]




Melbourne

3.33PM, TUESDAY, 15 FEBRUARY 2011

THE FOLLOWING PROCEEDINGS WERE CONDUCTED VIA
VIDEO CONFERENCE AND RECORDED IN MELBOURNE

Adjourned indefinitely

PN1

THE COMMISSIONER: Yes, may I have the appearances please?

PN2

MR M SHEEHAN: I can't really see, but it's Michael Sheehan on behalf of MTASA, and I have also been requested to make an appearance for the MTA New South Wales. Thank you Commissioner.

PN3

THE COMMISSIONER: Yes, thanks Mr Sheehan.

PN4

MR W CHESTERMAN: If the Tribunal pleases, Chesterman W J, representing the Victorian Automobile Chamber of Commerce.

PN5

THE COMMISSIONER: Do you also have a power of attorney for anyone, Mr Chesterman?

PN6

MR CHESTERMAN: No I don't, Commissioner.

PN7

THE COMMISSIONER: Thank you. All right, Mr Sheehan, well of course there has been a significant change in the original basis of your application so we'll have to make sure that the papers reflect that change. Mr Sheehan, with this television linkup I think it might be easier - while you've got your papers on the lectern there - whatever's easiest for you. You can remain seated if you wish to. Very well, off you go.

PN8

MR SHEEHAN: Yes, Commissioner, this application is made pursuant to section 160 of the Fair Work Act, as set out in the amended application, to vary the Vehicle Manufacturing Repair, Services, and Retail Award 2010. It's my understanding that the application was by consent. I'm not aware of any party opposing the application as yet. Certainly the submissions of the Motor Traders' Association New South Wales and also the submissions of the VACC support the application, and the SBA (indistinct) has put in some submissions. It's not entirely clear whether they're opposed or support the application, but we've taken it as a support of the application on the basis that they have indicated the changes we have sought in relation to some aspects of the application that they have an interest in are in line with the previous Federal Vehicle Industry Pre Reform Award. We also took time to discuss the application with the AMWU just prior to Christmas, and this was Mr Alex Sesmides and he didn't have an issue as I understood it in relation to the amended application that we had filed.

PN9

THE COMMISSIONER: Did you say he did or he didn't, Mr Chesterman?

PN10

MR SHEEHAN: He didn't have an issue with the amended application. He had some input into that amended application as I understood it, and I can only take it to date that he hasn't had any further issue with it.

PN11

THE COMMISSIONER: Yes.

PN12

MR SHEEHAN: I'm happy to go through the variations sought if that's what you wish, Commissioner, alternatively if there any questions you may have on the undertaking itself.

PN13

THE COMMISSIONER: Yes. Well, first of all it might be useful to deal with powers. Now this is raised as a section 158 application to vary but your submissions given are focussing on section 160, Mr Sheehan.

PN14

MR SHEEHAN: That's correct.

PN15

THE COMMISSIONER: Yes.

PN16

MR SHEEHAN: Basically what we are saying is that the amendments that we are seeking are to basically correct errors, uncertainties, anomalies, or certain aspects of the award that are ambiguous, and we believe that section 160 of the Act contemplates such amendments, which is in line with the modern award objectives.

PN17

THE COMMISSIONER: Yes, and you are standing?

PN18

MR SHEEHAN: We do, Commissioner. We were respondent to the previous federal pre-reform award. As an organisation, a vehicle organisational body, representing the Motor Trade Association of South Australia.

PN19

THE COMMISSIONER: All right. Is that a submission that finds some force in section 158?

PN20

MR SHEEHAN: It does (indistinct), Commissioner, and I think we've just (indistinct) submitted.

PN21

THE COMMISSIONER: Yes, all right. Well I'll turn to your submissions then, Mr Sheehan. Yes, well there's no need to read this, Mr Sheehan, but I take it you stand by these things.

PN22

MR SHEEHAN: Commissioner, I'm happy to (indistinct) matters if you wish, Commissioner. I'm happy to go through each of the variations sought.

PN23

THE COMMISSIONER: Well look, in the circumstances I don't know that it's necessary for you to deal with them all. It is interesting that the call-back - your original position on the call-backs of course has been overtaken by - - -

PN24

MR SHEEHAN: We're not (indistinct) - - -

PN25

THE COMMISSIONER: - - - a reconsideration.

PN26

MR SHEEHAN: - - - (indistinct) on that.

PN27

THE COMMISSIONER: I beg your pardon?

PN28

MR SHEEHAN: We (indistinct) our amended application filed on the - - -

PN29

THE COMMISSIONER: Yes.

PN30

MR SHEEHAN: I think it was 16 December.

PN31

THE COMMISSIONER: Yes, that's right. Yes, and is there - - -

PN32

MR SHEEHAN: As I said, I'm quite happy to go through the variations if you like.

PN33

THE COMMISSIONER: Yes. Yes, Mr Sheehan, when I'm looking sideways I'm really looking at you, you see, on the screen. The camera is - it's not really perhaps ideal because it looks as if you're utterly disinterested in the person to whom you're addressing your concentration. But it's not so. So even though I'm not looking at you, Mr Sheehan, really I am.

PN34

MR SHEEHAN: I see.

PN35

THE COMMISSIONER: Mr Sheehan, has an amended draft order come in? I'm not sure.

PN36

MR SHEEHAN: Yes, we did provide an amended draft order, I believe, on 16 December.

PN37

THE COMMISSIONER: Right, I just don't know that we've got that. We've certainly got the draft order which included the 3.1 and your - - -

PN38

MR SHEEHAN: At 3.1 we've "Got varying clause 28.4 (indistinct) that breaks down as follows" and so on and so forth. That was filed on 16 December. We did get a response from Fair Work Australia that they had received it.

PN39

THE COMMISSIONER: Yes.

PN40

MR SHEEHAN: I mean, I'm happy to provide another - - -

PN41

THE COMMISSIONER: I just want to make sure - - -

PN42

MR SHEEHAN: - - - (indistinct).

PN43

THE COMMISSIONER: Yes.

PN44

MR SHEEHAN: Commissioner, as I've said we filed the amended application and amended draft order on the 16th and followed that up with other supplementary written submissions on the 21st.

PN45

THE COMMISSIONER: Yes. Mr Sheehan, I've got your amended application of 16 December and attached to that is a form F46 application to vary a modern award, and that then sets out the variations that you seek. Is that what - - -

PN46

MR SHEEHAN: Yes, on page 2.

PN47

THE COMMISSIONER: Yes.

PN48

MR SHEEHAN: You've got the variations to the draft order.

PN49

THE COMMISSIONER: Yes. Is that what you mean when you say draft order? Because normally a draft order would take the form of a - - -

PN50

MR SHEEHAN: Yes. My apologies - - -

PN51

THE COMMISSIONER: - - - a (indistinct) order of the - - -

PN52

MR SHEEHAN: My apologies, Commissioner. I'm happy to provide a draft order in the usual sense.

PN53

THE COMMISSIONER: Yes. Well that would be helpful. It makes it easier for my associate.

PN54

MR SHEEHAN: Certainly.

PN55

THE COMMISSIONER: But I'm going to mark this, Mr Sheehan. I'm not going to mark the earlier material but I am going to mark your 16 December application, and that is an email setting out your commentary on the first application. I'm going to mark that MTASA 1, a nice easy title.

EXHIBIT #MTASA1 EMAIL FILED 16/12/2010 SETTING OUT COMMENTARY ON FIRST APPLICATION

PN56

THE COMMISSIONER: Then the F46 as MTASA 2.

EXHIBIT #MTASA2 A FORM F46 APPLICATION TO VARY A MODERN AWARD

PN57

THE COMMISSIONER: Which has the detailed - - -

PN58

MR SHEEHAN: I understand.

PN59

THE COMMISSIONER: - - - description of the changes.

PN60

MR SHEEHAN: Correct.

PN61

THE COMMISSIONER: Yes. All right, have you got those Mr - - -

PN62

MR SHEEHAN: (indistinct) those documents here.

PN63

THE COMMISSIONER: We'll just see if Mr Chesterman - just a moment, if you would, Mr Sheehan. Mr Chesterman, have you got the amended application?

PN64

MR CHESTERMAN: Yes. Yes I have, Commissioner.

PN65

THE COMMISSIONER: All right, that's fine.

PN66

MR CHESTERMAN: That's what I'm working on.

PN67

THE COMMISSIONER: Yes.

PN68

MR CHESTERMAN: That's what I've been working on.

PN69

THE COMMISSIONER: All right, Mr Sheehan, please continue.

PN70

MR SHEEHAN: That document that we (indistinct) in the earlier submissions, it was to do with an order of Commissioner Lewin.

PN71

THE COMMISSIONER: Yes.

PN72

MR SHEEHAN: Going back to May 2003. I'm not sure whether you want to mark that as an exhibit as well.

PN73

THE COMMISSIONER: Well all these things are going to go onto the file. Mr Sheehan, I'm told by the reporting service that your microphone is not close enough to you, or you're not close enough to it. Yes, I don't know whether you can - that's it. That might be better.

PN74

MR SHEEHAN: Yes.

PN75

THE COMMISSIONER: Yes. I mean, all this material will go on the file. I don't know that it's going to be very helpful to mark everything. But you're now referring to the original application. Perhaps it will be necessary, so I'm now going to mark as MTASA 3 the 21 December submission, which of course has attached to it an order of 16 May 2003 made by Commissioner Lewin. So I won't mark that, but in any event I would rarely mark a Commission document.

EXHIBIT #MTASA3 APPLICANT'S SUBMISSION OF 21/12/2010

PN76

THE COMMISSIONER: So, yes, Mr Sheehan?

PN77

MR SHEEHAN: Okay. Well the first variation is in relation to clause 28.9 of the award and it relates to call-backs; in particular call-backs to breakdowns. There's a bit of history to the call-back provisions in the award and we've set out a brief explanation in our submissions on 21 December of the call-back provisions, and how they relate to other (indistinct) type provisions. This is by way of some background information and an introduction to the variations that we seek in relation to that particular clause. There are three particular variations in relation to clause 28.9.

PN78

The first variation is in clause 28.9(b) where we seek the inclusion of the words "of return to such a place" prior to the words "after the performance of work". We say that this will provide further clarity and completeness in calculating the period of time of duty to also include the time taken to return to the normal place of residence after the completion of work. We say that not to include these words would render the calculation to the end of the completion of work only, and this would be inconsistent with similar wording in sub clause (d). The order of Commissioner Lewin actually refers to this aspect of the variation, Commissioner; the order of Commissioner Lewin on 23 May, which we say will readily identify that the omission took place at that particular time. We simply seek to correct the error that took place at that time. If I can take you to the actual award itself.

PN79

THE COMMISSIONER: Yes.

PN80

MR SHEEHAN: You may find on page 4 down the bottom is item 23, and at item 23 the order is to "Insert the words 'of his return thereto' appearing at paragraph 24(5)(i) the words 'after the performance of work'". Now when the order was implemented into the award the words "of his return thereto" somehow was omitted in error. If you have a look at the pre-reform award you will find that - if I can take you to clause 24 of that pre -reform award you'll find that the actual wording itself dropped off. It was never intended to be omitted. It was just a drafting error we would say. But it does provide clarity, and that's what we are seeking in the current award variation.

PN81

THE COMMISSIONER: Yes. Mr - - -

PN82

MR SHEEHAN: I think it gives a sense of completeness to the calculation - - -

PN83

THE COMMISSIONER: Yes.

PN84

MR SHEEHAN: - - - (indistinct) for the return journey to the person's place of residence rather than at the completion of work itself. And similar words as we've suggested are also included in sub clause (d), and if I can take you to sub clause (d) of the current award where the sentence "The calculation of the period of work will include only the time reasonably occupied in travel or work between the time of the employee's departure from the normal place of residence or other starting point and the time of the return to the employee's residence". So it's the same meaning. So what we are seeking is to correct that particular clause in relation to clause 28.9(b) for completion and clarity.

PN85

THE COMMISSIONER: Yes. Mr Sheehan, can I ask you please to look at 28.9(b), and you, if you would, Mr Chesterman.

PN86

MR SHEEHAN: Yes.

PN87

THE COMMISSIONER: It just seems to not have been - to use the current parlance - as expertly wordsmithed as it might have been. But it reads, "The calculation of the period of time of duty will include only the time reasonably occupied in travel or work between the time of the employee's departure from normal place of residence". There seems to be something missing there. Why does it read in that abrupt way do you think, Mr Sheehan?

PN88

MR SHEEHAN: Well what we are seeking to include there, sir, is "departure from the normal place of residence and the time" - I forget the wording at the end.

PN89

THE COMMISSIONER: Yes, I know what you're seeking to do but I'm asking you about - - -

PN90

MR SHEEHAN: "And the time of return to such a place after the performance of work".

PN91

THE COMMISSIONER: Yes, well that's right but my question was - and I don't say it's the most important matter I've ever raised, but should it be - how does your award read? Have you got your copy of the award there, Mr Sheehan?

PN92

MR SHEEHAN: I have, Commissioner.

PN93

THE COMMISSIONER: Yes, so have I, and I'm sure neither of us go anywhere without it, but 28.9(b), would you mind reading from your award that you have in front of you; sub clause (b)?

PN94

MR SHEEHAN: Certainly. "And sub clause 28.9(b) relates as follows. The calculation of the period of time of duty will include only the time reasonably occupied in travel or work between the time of the employee's departure from the normal place of residence".

PN95

THE COMMISSIONER: Yes. No, I'll ask you to stop there.

PN96

MR SHEEHAN: Yes.

PN97

THE COMMISSIONER: You read - and you've done it twice now - "from the normal place of residence", because the award that I've got, that my associate has very kindly printed off for me, reads "from normal place of residence".

PN98

MR SHEEHAN: I beg your pardon, Commissioner, I think there's a the missing from there.

PN99

THE COMMISSIONER: Yes. Well I notice in your application to - - -

PN100

MR SHEEHAN: I'm happy to insert the word "the" in there, which will be in line with, as I've said, sub clause (d).

PN101

THE COMMISSIONER: Yes.

PN102

MR SHEEHAN: "The normal place of residence".

PN103

THE COMMISSIONER: Yes, well you had rendered your amendment set out at 3.1(i) as including that the, the word the, so I'm going to pop it in, Mr Sheehan. All right.

PN104

MR SHEEHAN: Yes, we will certainly include it in our draft order.

PN105

THE COMMISSIONER: Yes. Yes, all right.

PN106

MR SHEEHAN: So if we return to that, so what we are seeking basically is some clarity and completeness and how the time is calculated, and we will certainly take into account the suggestions you've made into the draft order. Further variations to the same clause, 28.9; as we've explained in our submissions clause 28.9 sets out two options for employers in relation to emergency or breakdown work for call-backs. Firstly, as currently constructed in the award, sub clauses (a) and (b) of clause 28.9 deals with the situation where no written agreement exists to be available on rosters to service emergency after hours. So while there are no written agreements in relation to call-back rosters there are still situations that require emergency assistance to be provided, and the payment includes two hours at double time for the first call-back and the subsequent call-backs a payment of one hour at double time.

PN107

The second and alternative option is where agreement exists as recorded in writing, and sub clauses (c), (d) and (e) of the current award apply in this situation, and payment entails one hour at double time. Unfortunately the numbering of the clause 28.9 in the modern award has drifted somewhat from the pre-reform award prior to 1 January 2010. This has in our view provided issues of clarity in application, which we now seek to address. So basically in short what we are seeking is the renumbering of the clause to reflect the numbering of the pre-reform award. So what we are proposing is that the numbering of sub clause (b) be removed so that the whole of (a) will in actual fact encapsulate the first option. So you have two paragraphs in (a) and two sub clauses, (i) and (ii), and as I've said, that would encapsulate the first option. Sub clauses (c), (d) and (e) are in fact the alternative option as I referred to previously. What we would suggest is that (c) be renumbered as (b), and (d) and (e) would be in fact sub clauses of the new renumbered (b); as I said, renumbered as (i) and (ii), (i) and (ii) of the new sub clause (b).

PN108

THE COMMISSIONER: Well I follow - yes, I see.

PN109

MR SHEEHAN: If you look at the previous pre-reform award, Commissioner, you'll find that what we've suggested is in line with that award. The present sub clause (f) is a standard model clause and we would say that should be renumbered as sub clause (c).

PN110

THE COMMISSIONER: Mr Sheehan, by the various mechanism of these options in the event that the - and I intend to rely on what you say in a moment. By the various workings of these things, the options, and the changes that are being effected, is there any diminution in your understanding of entitlement as a consequence?

PN111

MR SHEEHAN: Not at all, Commissioner.

PN112

THE COMMISSIONER: No.

PN113

MR SHEEHAN: Not at all.

PN114

THE COMMISSIONER: All right. Thank you.

PN115

MR SHEEHAN: All it does is provide clarity in setting out the two major options, and sub clause (a) will have that first option clearly (indistinct). Sub clause (b) as renumbered will contain the two - (i) and (ii), and that will encapsulate the second option, and sub clause (c), the renumbered sub clause (c) will be just added on.

PN116

THE COMMISSIONER: Yes. Thank you.

PN117

MR SHEEHAN: That's how it was reflected in the previous pre-reform award.

PN118

THE COMMISSIONER: Yes. I don't know if this draft is going to be a bestseller but I follow what you're putting. Thank you.

PN119

MR SHEEHAN: The next variation, Commissioner, is in relation to clause 33.7. 33.7 deals with the vehicle industry RS&R unapprenticed junior classifications, and what we are seeking here are some changes in relation to some of the classifications that have been inadvertently included as RS&R classifications which are not appropriate, as they are really classifications under the manufacturing stream and not the RS&R stream. So what we are seeking is the deletion of the furnace person other than on cupola - - -

PN120

THE COMMISSIONER: Mr Sheehan, before you put this particular submission of course I can see what it is you're going to say. Of course one is mindful of the two - the repair, service and manufacturing structure on the one hand and repair, services and retail on the other. The inclusion of these within the RS&R stream, when one has that in contemplation and then considers removing them, is there any potential for a lack of flexibility to be the result for RS&R employers?

PN121

MR SHEEHAN: We say that these classifications do not exist in the RS&R stream at all, and those particular duties are actually covered under the manufacturing stream, and are dealt with under the manufacturing stream.

PN122

THE COMMISSIONER: Yes. Well, Mr Sheehan, it's never helpful to deal with things in a staccato fashion but rather than look forward to Mr Chesterman's submissions in toto I'm going to ask him now to comment about that. Are you at one with that part of Mr Sheehan's position?

PN123

MR CHESTERMAN: Yes I am, Commissioner.

PN124

THE COMMISSIONER: Yes.

PN125

MR CHESTERMAN: Because I actually had a look at this and I know from the history of the award modernisation process that at one stage at the early stages of the drafting of an award, which predominantly came from MTA New South Wales, there was an attempt to move a lot of the, if you like, classifications that Mr Sheehan is seeking to remove into a combined RS&R stream. I agree with Mr Sheehan because when I looked at what the application sought to take out I actually looked at the section part 2 of the vehicle manufacturing repair service - well, section 2 which dealt with vehicle manufacturing, and those classifications are covered. So my concern was if you took them out would they fall between the cracks, and they don't.

PN126

THE COMMISSIONER: No.

PN127

MR CHESTERMAN: So in my view that's a fair and reasonable deletion from that clause.

PN128

THE COMMISSIONER: Yes. Well I understand you say that and I'm sure Mr Sheehan would have moved to make your final point also, but you not only concur with Mr Sheehan but that's your recollection of how this came about.

PN129

MR CHESTERMAN: Definitely.

PN130

THE COMMISSIONER: All right. Well it looks like Mr Chesterman's right behind you, Mr Sheehan.

PN131

MR SHEEHAN: Thank you for that, Commissioner. Just one further comment to that; the other reason we are deciding to take these classifications out of the RS&R are that those duties are already covered, as I've said, under the manufacturing section of the award in clause 52, where you have junior wage rates, and they are a different percentage of the level 1 rate as what you have in clause 33.7. So it does tend to - the variation that we seek to the clause certainly provides clarity, rather than further confuse the application of the award.

PN132

THE COMMISSIONER: Yes.

PN133

MR SHEEHAN: Because at clause 52 you will find that there are junior wage rates and this is in relation to the manufacturing sector and you have, as you can see, different percentage levels of that level 1 rate. So to keep including the furnace person and other classifications under the RS&R stream is probably going to be a bit confusing, I would have thought, unless you - - -

PN134

THE COMMISSIONER: Yes, and in fact might even invite some trouble. No, I understand your submission. Thank you.

PN135

MR SHEEHAN: So what we're saying is that if you take out that particular classification in 33(b), and in relation to 33.7(d) the classifications of boiler attendant or fireperson, furnace person foundry, press operator over 250 tonnes and rigger, all of which come up from 33.7(b). The final amendment we would seek is in relation to the - this is also in clause 33.7(d) - an amended classification of radiator keeper. That's an error. That should actually read as radiator repairer.

PN136

THE COMMISSIONER: Yes. Yes, one despairs about how some of these gremlins crept in. Various explanations have been posited. I think Mr Chesterman bears some of the - no, I'm sorry, you wanted to say something?

PN137

MR CHESTERMAN: No. No, I was going to say actually I can't claim credit for it because I did actually check my draft award, just because I was very upset that, you know, some of these things did come in. But having said that, I think, you know, it was a reasonably complex process and these little things - I think the problem was because it was a combination of two awards and the checking of it occurred from January through to July, and there were lots of changes with transitional arrangements and annual wage reviews, and I think some of these things did fall by the wayside a bit. It's unfortunate, because it would've been nice to have an award, sort of, by the middle of the year that was perfect. Nobody had to come back to - - -

PN138

THE COMMISSIONER: It was perfect in all respects.

PN139

MR CHESTERMAN: Yes. That would have suited me.

PN140

THE COMMISSIONER: Yes.

PN141

MR CHESTERMAN: But it's unfortunate it just didn't quite work that way. But it's frustrating, I've got to say, but to a degree it's understandable because the changes that occurred with transitional arrangements and the preoccupation with printing awards and lots of things, I think that was the problem. But the award, let me say, is working extremely effectively.

PN142

THE COMMISSIONER: Well, that's pleasing to hear. Perhaps Mr Sheehan is going to wind into a peroration towards the end of his submission and make a similar observation. But without describing - - -

PN143

MR SHEEHAN: Yes, I agree with Mr - - -

PN144

THE COMMISSIONER: I beg your pardon?

PN145

MR SHEEHAN: I do agree with Mr Chesterman's submissions.

PN146

THE COMMISSIONER: Good.

PN147

MR SHEEHAN: It was a complicated process and we had to assist and - - -

PN148

THE COMMISSIONER: Yes.

PN149

MR SHEEHAN: - - - rectify some of these residual issues.

PN150

THE COMMISSIONER: Yes.

PN151

MR SHEEHAN: And the next amendment we seek is in relation to clause 34, which is the - the title of the clause is Junior Drivers. Now we say that the modern award now reflects the percentage of the level 1 rate which is clearly inconsistent with the conditions that were (indistinct) of the previous pre-reform award and (indistinct) clause 30(a)(v) of the pre-reform award where it was quite clear that the age percentages applied to the relevant adult classifications (indistinct) classifications of the award. So what we seek is an amendment to clause 34 so that it reflects now a percentage of the relevant adult driver rate, which we understand in most cases will be a level 4 rate under the award.

PN152

THE COMMISSIONER: What's currently happening, Mr Sheehan?

PN153

MR SHEEHAN: Well we're not aware of any issues but certainly the advice from the MTASA, as I'm sure from the VACC and the MTA New South Wales, is that we would keep the approach so that the junior driver rate would be a percentage of the relevant adult driver rate, and that in most cases would be a level 4 rate. Having said that, Commissioner, there are a number of employees who are not members of an employer organisation and may well be applying the award without the historical background to the award and - - -

PN154

THE COMMISSIONER: Yes.

PN155

MR SHEEHAN: - - - they may well be (indistinct) so we will come to that part of it (indistinct) the operative date that we will seek at the end of the submission.

PN156

THE COMMISSIONER: Yes.

PN157

MR SHEEHAN: So what we seek is an amendment to clause 34 so that it reflects the percentage of the relevant adult driver classification. The final amendments we would seek as part of the variations deals with schedule B of the award. Schedule B in actual fact refers to the skill level definitions of the RS&R stream. So what we say is that the current schedule includes the classification of a sales person with more than six months' experience at a level 6, and we say that clearly is an error which should be rectified in this application. Secondly, it is inconsistent with the classification structure as was contained in the pre-reform award at clause 8 of the pre-reform award. For completeness if I can just give you a picture of the classification structure in relation to sales people.

PN158

What we have in the award is an automotive parts sales person, other, at level 4 and this could be someone who has got less than three years' experience, while at level 5 you have an automotive sales person (experienced) who has greater than three years' experience. So that is at level 5, and you will find the definition for an automotive parts sales person (experienced) in the definitions clause, clause 3 of the award. Also at level 4 we have a (indistinct) vehicle or an agricultural vehicle sales person who has less than six months' experience, while at level 6 we have a (indistinct) vehicle agricultural sales person, and this should now reflect, as we are proposing in our application, to be someone who has more than six months' experience. We have sought that change in the application, and it would be consistent with the former pre-reform award.

PN159

Finally if we could take you to level 4 again, where we have the sales person other category. In other words, any other sales person regardless of experience who is involved in the sales of, for example, non-specialised parts or items such as roof racks, bull bars, seat covers, polishes, et cetera, and that is contained at a level 4. So the inclusion of a sales person with more than six months' experience at level 6 is an error, and we say it should be deleted from level 6 of the award. That concludes the description of the variations that we are seeking in this application, Commissioner. As I've indicated previously, the amendments are basically to correct errors, uncertainties and anomalies or issues that are ambiguous. Certainly we believe that section 160 of the Act contemplates amendments in such a manner. In relation to the operative date we would seek an operative date - - -

PN160

THE COMMISSIONER: I'm sorry, I'll ask you to pause there, Mr Sheehan.

PN161

MR SHEEHAN: Yes.

PN162

THE COMMISSIONER: So I'll just try and understand this. You want the new motor vehicle and/or agricultural sales person with more than six months' experience that's at - - -

PN163

MR SHEEHAN: Level 6.

PN164

THE COMMISSIONER: - - - level 1 R6.

PN165

MR SHEEHAN: Correct.

PN166

THE COMMISSIONER: Then the - - -

PN167

MR SHEEHAN: And to delete the sales person with more than six months' experience at that level. It's three classifications - - -

PN168

THE COMMISSIONER: Yes. Yes, so that's - - -

PN169

MR SHEEHAN: That's the classification that has been included in error that should be deleted. What we say, as I've said before, is that if you turn to level 4 R4 - - -

PN170

THE COMMISSIONER: Yes.

PN171

MR SHEEHAN: - - - you have a sales person, other, and that is the category for any other sales person.

PN172

THE COMMISSIONER: Yes.

PN173

MR SHEEHAN: So essentially what you have at level 4 is the automotive parts sales person other, which is someone who has got less than three years' experience, and a person that has got three years' or more experience is a level 5.

PN174

THE COMMISSIONER: So what would an example of a sales person other be? They're not selling automotive parts; that's right, isn't it?

PN175

MR SHEEHAN: Not specialised parts. Such as roof racks, bull bars, seat covers, polishes, things of that sort of nature. So they're not specialised parts as compared to an automotive parts sales person - - -

PN176

THE COMMISSIONER: Yes.

PN177

MR SHEEHAN: - - - (indistinct) level 4 or if they've got less than three years' experience or someone sitting at level 6 who has got three or more years' experience as defined in the award.

PN178

THE COMMISSIONER: All right, thank you. Yes, now you were on to operative date.

PN179

MR SHEEHAN: I think that just about wraps up my submissions, Commissioner. I've got no other submissions to make in relation to - unless we discuss the operative date situation, but I'm happy to answer any questions you may have.

PN180

THE COMMISSIONER: What's your submission on operative date, Mr Sheehan?

PN181

MR SHEEHAN: As indicated, probably the only substantive classification variation (indistinct) is in relation to the junior driver rates, and to me it would be - we do not want to put any employers in a detrimental situation in respect of retrospective orders. So we would seek an operative date of the issue of the order in line with the date of the issue of the order.

PN182

THE COMMISSIONER: Yes. Thanks Mr Sheehan. Thank you for your material and your submissions. Yes Mr Chesterman?

PN183

MR CHESTERMAN: Thanks, Commissioner. Just following on from Mr Sheehan said we would support the variations under section 160. In terms of the call-back breakdown, you asked whether there would be any diminution in remuneration and we don't have an issue with what Mr Sheehan has sought to insert in that clause, and we don't believe that that would have any effect on people's remuneration or lowering - - -

PN184

THE COMMISSIONER: Or entitlements.

PN185

MR CHESTERMAN: Yes.

PN186

THE COMMISSIONER: Yes.

PN187

MR CHESTERMAN: Yes. In terms of the - well obviously I've gone to the issues about removing some of the sub-classifications in 33.7(d). The junior rates, yes it is correct that historically it is the adult rate, a percentage of the adult rate, and which is generally expressed as an equivalent of the RS&R level 4. We don't have an issue with it because when we did our rates we applied the percentages on a level 4 classification.

PN188

THE COMMISSIONER: Well how would the award operate if Mr Sheehan's successful?

PN189

MR CHESTERMAN: Well, it would be based on the level 4 adult rate.

PN190

THE COMMISSIONER: Of the relevant classification?

PN191

MR CHESTERMAN: Yes.

PN192

THE COMMISSIONER: Yes.

PN193

MR CHESTERMAN: Correct.

PN194

THE COMMISSIONER: Yes, all right.

PN195

MR CHESTERMAN: The other changes in terms of the motor sales person and the agricultural sales person more than six months we support too.

PN196

THE COMMISSIONER: Yes.

PN197

MR CHESTERMAN: As we do with the removal of the reference to sales person more than six months, because that's surplus (indistinct) in that level 6 classification. But beyond that we would like to think that - well, I'd like to think that this might be the last variation for a while and that it tallies up what has been inadvertently left out or not observed during the last year.

PN198

THE COMMISSIONER: Yes. Thanks, Mr Chesterman, for your submissions.

PN199

MR CHESTERMAN: Yes.

PN200

THE COMMISSIONER: Well, Mr Sheehan, whether Mr Chesterman's right and this is the final go round one can only hope so because there were - I hope there's no hint of self interest in this, or self serving but speaking on behalf of my associate, I might say, over a very difficult period of drafting there do seem to have been - notwithstanding great efforts to ensure these things don't happen there were some difficulties which seem to have taken a deal of time to iron out and even to identify. But this of course is one of the more complex awards, but it doesn't necessarily do to be too forensic about it, because this application which is made seeking to vary a modern award, the Vehicle Industry Manufacturing Repair, Services, and Retail Award 2010, consistent with the powers available to the Commission under section 160 - and I have no doubt that this is a case where these changes can occur. It's true though to say that one of the variations is sought to correct what's said to be an error attaching. It has taken some time to deal with that error but nevertheless it is an error. The Act doesn't place a temporal limit on error corrections and so it is that my brother Lewin's good work of 2003 can be rendered even more lustrous - and I'm going to give him your very best wishes, gentlemen, as you have been so critical of his work. So I will vary the award consistent with the amended application which I have marked in this matter. Mr Sheehan, it would be particularly helpful if there can be a draft order provided in due course. The variation will take effect from the first pay period on or after today's date. It might be useful, Mr Sheehan, if Mr Chesterman could also have a look at your draft order. I don't know whether you want to do that, but the attempt is of course to make sure that the award now is without any fault in relation to drafting, or the rendition that was necessary after the melding of the two awards and their modernisation. Thanks for all your help, Mr Sheehan, the work you've done. If you send that along that will make my associate's life a little easier. I now adjourn.

<ADJOURNED INDEFINITELY [4.19PM]

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #MTASA1 EMAIL FILED 16/12/2010 SETTING OUT COMMENTARY ON FIRST APPLICATION PN55PN56
EXHIBIT #MTASA2 A FORM F46 APPLICATION TO VARY A MODERN AWARD PN56
EXHIBIT #MTASA3 APPLICANT'S SUBMISSION OF 21/12/2010 PN75